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in  Proeediire'  'm , -the  State-  of  "Ohio  '• ' 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


/ 


TRIAL  EVIDENCE 


A  Practical  Treatise 

On  the  Law  of  Evidence 

and  Related  Subjects  In 

Procedure  in  the 

State  of  Ohio 


BY 

REED    METZLER 

Of  the  Columbus  Bar 
Author  of  an  Outline  of  Evidence 


CINCINNATI 
THE  W.  H.  ANDERSON  CO. 

LAW  BOOK  PUBLISHERS 
1920 


-T 
19- 


Copyright,  1920 

BY 

THE  W.  H.  ANDERSON  COMPANY 
CixciNXATi,  Ohio. 


r  1<- 


sMth  ^ 


PREFACE 


This  treatise  is  an  attempt  to  harmonize  the  reported  eases 
in  Ohio  on  the  laAV  of  evidence  in  accordance  with  the  modeni 
law  on  the  subject. 

The  order  and  arrangement  oi'  the  book  is  hirgely  the  work 
of  the  author,  but  he  dischiims  any  great  originality  in  that 
respect.  Indeed,  with  such  modern  writers  of  ability  in  the 
field  as  Thayer  and  Wigmore,  originality  would  seem  to  be 
hardly  possible. 

To  the  writings  of  both  Thayer  and  Wigmore,  the  debt  of 
the  author  is  very  great.  In  Wigmore 's  Treatise,  many  of 
the  rules  of  evidence  expounded  herein  have  been  verified; 
in  Thayer's  Preliminary  Treatise  on  the  Law  of  Evidence  was 
found  an  explanation  of  the  laAv  of  presumptions  which  led 
the  author  to  adopt  the  arrangement  of  that  subject  which  is 
here  presented.  Accordingly,  the  indebtedness  of  the  author 
to  these  two  writers  is  hereby  acknowledged.  The  works  of 
most  of  the  writers  of  reputation  have  been  examined  on  one 
or  more  points  in  the  law  of  evidence ;  and  some  help  has  been 
derived  from  each. 

In  the  appendix  will  be  found  an  outline  of  the  law  of 
evidence.  This  outline  is  a  summary  of  the  text  of  the  book; 
or,  in  other  words,  the  text  is  a  commentary  on  the  outline. 
It  is  hoped  that  this  will  be  helpful  to  practicing  lawyers,  and 
especially  so  to  law  students,  in  reviewing  the  general  prin- 
ciples, and  also  the  statutory  rules,  of  evidence  as  illustrated 
by  the  Ohio  cases. 

The  author  has  endeavored  to  compile  a  book  which  would 
be  serviceable  to  the  lawyers  of  Ohio ;  this  work  is  not,  how- 
ever, submitted  to  the  legal  profession  with  confidence  that 
it  is  without  error,  but  only  M'ith  a  hope  that  its  mistakes 

are  few. 

REED  METZLER. 

Columbus,  Ohio,  September  1,  1920.   ' 


TABLE  OF  CONTENTS 


CHAPTER  I. 

Section  JUDICIAL  ADMISSIONS,  Page 

1    Issues  made  by  denials 1 

2.  Admissions  in  pleadings 2 

3.  Admissions  and  denials 3 

4.  Material  allegations. 3 

5.  Averments  as  to  value 4 

6.  Judgment  by  default 5 

7.  Admissions  generally  binding 6 

8.  Parties  not  bound 7 

9.  Admissions  in  other  cases 8 

10.  Admissions   outside   pleadings — Forms 9 

11.  Agreed  statement  of  facts 10 

12.  Agreements  as  to  certain  facts 11 

13.  Oral  admissions  by  party 11 

14.  Oral  admissions  by   attorney 12 

CHAPTER  II. 

JUDICIAL  NOTICE. 

15.  General  principles 1-1 

16.  In  subjects  other  than  evidence 14 

17.  Matters  of  general  and  local  government 16 

18.  Legislative  proceedings 17 

19.  Public  and   general  law 1" 

20.  Ordinances    ^  ^ 

21.  Courts  and  their  proceedings 20 

22.  Generally  accepted  public  history 21 

23.  Geography 

24.  Facts   of   science  and  of  art *. 23 

25.  Matters  of  common  knowledge 24 

CHAPTER  III. 

PRESUMPTIONS. 

2G.  General  principles 26 

27.  Presumption    of    innocence 28 

28.  Presumptions   of    capacity 29 

2't.  Relating  to  deeds  and   conveyances •^f' 

V 


Vi  TABLE    OF    CONTENTS 

Section  Page 

30.  Presumption  of  payment 31 

31.  Miscellaneous   presumptions , 32 

32.  Effect   of    decisions 33 

33.  Omnia   praesumuntur 34 

34.  Validity  of  official  acts 35 

35.  Decision  below   sustained 36 

£G.  Seasoning    of   the    court 37 

37.  Prima  facie   evidence 38 

38.  Performance  of  duty 39 

30.  Eegularity    of    transactions 40 

40.  Rule  on  burden  of  proof 41 

41.  Presumptions    of    fact 43 

42.  The  presumption  of  continuance 45 

43.  Construction   of   writings 47 

44.  Conclusive   presumptions 50 

CHAPTER  IV. 
THE  BURDEN  OF  PROOF. 

45.  General  rule 52 

46.  Denial   in    answer 52 

47.  New  matter  in  answer 53 

48.  Kew  matter  in  reply 55 

49.  Denial  and  new  matter 55 

60.  Anticipating   a   defense 56 

51.  Nature   of  new    matter 56 

52.  Proof  of  defenses    to   notes 58 

53.  Proof  of  performance     59 

54.  Proof  of  a  single  fact f»2 

55.  Open  and  close — General  principles 63 

56.  Open  and  close — Illustrations ^4 

57.  Open  and  close — Error  in   ruling 65 

58.  Rebutting   evidence 66 

59.  Proper  rebuttal 68 

CHAPTER  V. 
TPIE  SHIFTING  BURDEN. 

60.  The  burden  of  proof  never  shifts 69 

61.  The  duty  of  rebutting   shifts 71 

62.  Cases  for  tiie  court 72 

63.  The  charge T3 

64.  Error  in  the  charge ~i 

65.  Illustrations   of   shifting '. .  •  75 

66.  The  effect  of  negative  allegations 78 

67.  Clear  evidence — General   principles 80 

68.  Clear  evidence  to  vary  writings 82 

C').  Clear  evidence  to  establish  a   trust S3 


TABLE    OF    CONTENTS  Vll 

Section  Page 

70.  Clear  evidence  to  reform  an  instrument 81 

71.  Clear  evidence  to  vary  commercial  paper 85 

72.  Clear  evidence  to  affect    official    action. 86 

73.  Clear  evidence  to  establisli  lost  instruments 86 

74.  Clear  evidence  in  miscellaneous  cases 87 

75.  Clear  evidence  in  transactions  not  favored 87 


CHAPTER  VI. 
THE  DEGREE  OF  PROOF. 

76.  Beyond   a   reasonable    doubt 90 

77.  The  charge  in  criminal  cases 92 

78.  Defense  of   "not  guilty" 94 

79.  Defense  of  alibi 95 

80.  Independent   defenses 96 

81.  Defense    of    insanity •  •  •  97 

82  Defense   of    self-defense 99 

83.  By  a  preponderance 99 

84.  Criminal  and   tortious   acts 101 

85.  la  the  contest  of  wills 103 

86.  In  negligence   cases 105 

87.  In   attachment    108 

88.  In  injunction. 108 

89.  In  special   proceedings. 109 


CHAPTER  VII. 
COURT  AND  JURY. 

90.  Law  and  fact Ill 

91.  Credibility   of   witnesses 114 

02.  Classifying  witnesses 1 1^ 

93.  Weight   of    evidence 117 

04.  Negative  testimony 119 

95.  Statement    of    issues 1-1 

00.  Two  issues l--^ 

07.  Summing  up  tlie  evidence 124 

98.  Facts   considered  without  evidence 126 

99.  Nonsuit — Scintilla  rule    127 

100.  Nonsuit— Motion  by  one  party !'-!> 

101.  Nonsuit— Motion  by  each  party 130 

102    Cases  for  the  jury 130 

103.  Conclusive  proof !•'- 

104.  In  negligence   cases 133 

105.  In  will   contests •• l'^''> 


Ylii  TABLE    OF    CONTENTS 

CHAPTER  VIII. 

Section  ISSUE  AND  VARIANCE.  Page 

106.  General   principles 137 

107.  Immaterial  variance 139 

108.  Material  variance 140 

109.  Time  for  objection 141 

110.  Conforming  pleading  to  proof 142 

111.  Inserting  allegations    144 

112.  Defect  waived 145 

113.  Objection  before  trial — Defect  not  waived 145 

114.  Failure  of  proof 146 

115.  Variance  as  to  immaterial  allegations 148 

116.  Rule  applied  to  answers 149 

117.  Rule  applied  to  replies 150 

CHAPTER  IX. 
RELEVANCY. 

118.  Direct  and  indirect  evidence 152 

119.  Evidence  on  one  issue 155 

120.  Order  of  evidence 156 

121.  Legal   relevancy — Outline 158 

122.  Genuineness  of  document 158 

123.  Introducing  a  fact 159 

124.  Explaining    a    fact 159 

125.  Supporting  an  inference 160 

126.  Rebutting  an  inference 161 

127.  Proving  identity 164 

128.  Preparation  and   subsequent   conduct 165 

129.  Subsequent   repairs 168 

130.  Remoteness 170 

131.  Similar  occurrences 172 

132.  Other  fires 174 

133.  Other  offenses. 175 

134.  Financial   ability 177 

135.  Custom   or  habit 178 

CHAPTER  X. 
CHARACTER. 

136.  General   principles ISO 

137.  In  libel    and    slander 181 

138.  In  torts  generally 182 

139.  In  rape  and  seduction 183 

140.  In  crimes  generally 1S5 

141.  In  defense  of   self-defense 187 

142.  Social  standing 189 

143.  Reputation  of  third   persons 189 


TABLE"  OF    CONTENTS  IX 

Secaon  ^^Se 

144.  Reputation  of  things ^^^ 

145.  Province  of  court  and  jiu-y 1^1 

CHAPTER  XI. 
STATE  OF  MIND. 

146.  Knowledge — General   principles.    193 

147.  Knowledge — Similar  frauds   and   crimes 196 

148.  Knowledge — Similar  accidents 198 

149.  Knowledge — ^Similar  occurrences    -00 

150.  Knowledge — Reputation -01 

151.  Motive — General  principles 202 

152  Motive — Other  crimes -0^ 

153.  Intent — General    principles 204 

154.  Criminal  intent  in  general 206 

155.  Intent  to  kill 207 

156.  Malice  in  general -'° 

157.  Malice  in  prosecutions -09 

158.  Malice  in  libel  and  slander 210 

159.  Mental  suffering 211 

160.  Defense  of  good   faith 211 

161.  Defense  of  mtoxication -'■" 

CHAPTER  XII. 

HEARSAY. 

914. 

162.  General  rule— Illustrations 

21  fi 

163.  Written  hearsay 

164.  Exceptions  to  the  rule -  ' 

165.  Words  in  issue " 

166.  Information  acted  upon - 

167.  Pedigree ^f 

168.  Custom  and  boundaries - 

169.  Statements  against  pecuniary   interest 

']  70.  Dying  declarations    

171.  Business  entries " 

172.  Mathematical  and  statistical  tables 

226 

173.  Commercial   publications 

174.  Former  testimony— Bill  of  exceptions --' 

175.  Former  testimony— Notes  of  stenographer 227 

176.  Former  testimony- Witnesses 

CHAPTER  XIII. 

ADMISSIONS. 

231 

177.  General   principles ^^^ 

178.  Illustrations— Oral.   ' 

179.  Illustrations-  Written 


X  TABLE    OF    CONTENTS 

Section  Page 

180.  Whole  statement  admissible 236 

181.  Acquiescence 237 

182.  Failure  to  offer  evidence 239 

183.  Offer   to    compromise 241 

184.  Self-serving  statements — Oral 242 

185.  Self-serving  statements — Exceptions 244 

186.  Self-serving  statements — Written 245 

CHAPTER  XIY. 

CONFESSIONS. 

187.  Preliminary   examination 247 

188.  Involuntary  confessions 249 

189.  Voluntary   confessions — Principles 251 

190.  Confessions  before  the  grand  jury 253 

191.  Confessions  of  joint  parties 254 

192.  Province  of  jury 255 

193.  Proof  of  the  corpus  delicti 256 

CHAPTER  XV. 
RES  GESTAE. 

194.  General  rule    259 

195.  Illustrations 260 

196.  Verbal  acts 261 

197.  Time  of  declaration 263 

198.  In  rape  cases : 264 

199.  Expressions  of  pain 266 

200.  Self-serving  declarations 267 

201.  Admissions    of    agents 268 

202.  Declarations  of  instructed   agent 269 

203.  Declarations  of  employes 270 

204.  Declarations  of  carrier's   agents 270 

205.  Declarations  of  spouse 271 

206.  Declarations  of  legal   representatives , 272 

207.  Declarations  of  corporate  agents 272 

208.  Declarations  of  public   agents 274 

209.  Declarations  of  partners 275 

210.  Declarations  of  grantors 276 

211.  Declarations  of  owners 27S 

212.  Declarations  of  joint  parties 280 

213.  Acts  of  conspirators — Examination 28? 

214.  Proof  of  acts— Principles 283 

215'.  Acts — In    homicide    cases    284 

216.  Acts — In   crimes   affecting   property 285 

217.  Acts — In  crimes  affecting  public 285 

218.  Acts — Under  anti-trust  law   286 

219.  Acts  not  within  conspiracy  rule 287 


o 


TABLE    OF    CONTENTS  XI 

CHAPTER  XVI. 
Section                       OBJECTIONS  AND  EXCEPTIONS.                           Page 
•220.  General  principles   -^^ 

221.  Error    in    admission — Principles -ilO 

222  Admission — The  record   20. 

223  Admdission — Prejudice     -'^- 

224.  Admission  of  indecisive  evidence -03 

225.  Admission — Subsequent  explanation    -'•■•> 

226.  AJmiission — 'Facts  not  in  issue -Ot> 

227.  Error    in    exclusion — Principles -'•'' 

228.  Exclusion  of   indecisive  evidence -•'' 

£29.  Exclusion  of  cumulative  evidence -OS 

220.  Exclusion — 'Later    admission    -^^ 

231.  Exclusion^ — Invited   error    209 

232.  Exclusion — Prejudice    300 

233.  Verdict  on  two  issues 302 

234.  Offer  and  objection 302 

235.  Time   for  objection 304 

236.  Repeated  rulings   306 

237.  Statement  of  expected  proof 307 

238.  Motion  to  rule  out 308 

12263— AJSTDERSOjST—Bantcl  3 

239.  The  motion  must  be  specific 300 

240.  Instruction  to  disregard 310 

241.  Forms  of  instructions 312 

CHAPTER  XVII. 

REAL  EVIDENCE. 

242.  Introductory    • 314 

243.  General   rule    314 

244.  Illustrations    314 

245.  View  by  the  jury — Principles 316 

246.  View  in  appropriation  cases 3U 

247.  View  in  criminal  cases '' ' 

248.  View  in  ditcli  cases 318 

249.  Physical  examination 319 

250.  Photographs  and  diagrams 320 

251.  Experiments  before   jury 323 

252.  Experiments  outside  of  court ^--^ 

CHAPTER  XVIII. 
WITNESSES. 

253.  ]\Iodes  of  taking  testimony 32.) 

2.54.  Testimony  by  affidavit •'-•_' 

2.5i5.  Testimony   by   deposition •  ■ ' 

25'6.  Exceptions    to    depositions 32. 

257.  Power  of  notary  taking  dc;)oi,itiL;ns 3.50 


Xii  TABLE    OF    CONTENTS 

Section                                                                                                                 Page 
25S.  Number  of  witnesses 332 

259.  Testimony   of   accomplices 333 

260.  Either  of  two  witnesses 336 

261.  Separation  of   witnesses 836 

262.  Limitation  of  number 337 

CHAPTER  XIX. 

COMPETENCY  OF  WITNESSES. 

2i)3.  General  rule    339 

204.  Compeitency  in  criminal  cases 340 

265.  Religious   belief    342 

266.  Privileged  communicatiions — ^Clergymen    342 

267.  Privileged  communications — Physicians   343 

268.  Privileged  communications — Attorneys    343 

269.  Of  husband  and  wife — ^Civil  cases 346 

270.  Of  husband  and  wife — Criminal  cases 348 

CHAPTER  XX. 

COMPETENCY  OF  PARTIES. 

271.  General  rule    351 

272.  Objection  to  incompetency 352 

273.  Necessary  parties    353 

274.  Parties  not  adverse  to  representative 354 

275.  Agents  not  parties 354 

27'6.  Heirs   not   parties 355 

277.  Other  witnesses  not  parties 3o5 

278.  Party  against  executor 356 

279.  Party   against   guardian 357 

280.  Party  against  other  representatives 358 

281.  Party  against  assignee 3o9 

282.  Assignor  against  representatives 860 

283.  First   exception    360 

284.  Second  exception   361 

285.  Third  exception   361 

286.  Fourth  exception  362 

287.  Fifth   exception    363 

288.  Sixth  exception    364 

289.  Seventh  exception  365 

290.  Eighth  exception    365 

291.  Ninth  exception    366 

292.  Reason  and  spirit  clause 367 

293.  Compelling  a  party  to  testify 367 

CHAPTER  XXI. 
EXAMINATION  OF  WITNESSES. 

294.  Direct — ^Leading  questions    369 

295.  Impeachment  of  own  witness 371 


TABLE    OF    CONTENTS  xHl 

Section  Page 

2t)<i.  Fortifying   own   witness 372 

297.  Refreshing  memory    373 

29S.  Cross-examination — The    riglit     374 

2B9.  Cross-examination — Ilhistrations    375 

300.  Cross-examination  of  accused 377 

301.  Cross-examiination — Error     r 377 

3(12.  Limits   of  cross-examination 378 

303.  Bias  and  prejudice 380 

304.  Disparaging  questions 381 

305.  Collateral  evidence   binding 383 

306.  Answer  as  to  conviction 384 

307.  Privilege  against   incrimination 385 

308.  Refusing   to  answer 386 

309.  Re-examination    387 

SIO.  Recalling  witnesses    389 

CHAPTER  XXII. 

IMPEACHMENT. 

oil.  Reputation    for   truth— Rule 390 

312.  Reputation — Facts  provable  391 

313.  Reputation  at  time   of  trial 392 

314.  Who  may  be  impeached 393 

315.  Contradictory    statements — Rule    393 

316.  Contradiction  in  opinions 394 

317.  Contradiction  in  former  testimony 395 

S18.  Contradictory  written  statements 306 

31 9.  Failure  to  speak 397 

320.  Order  of  evidence .' 3flS 

321.  Rehabilitation     3!)H 

CHAPTER  XXIII. 
FACTS  AND  OPINIONS. 

322.  General  princ'iplee    401 

323.  Conclusions  excluded    402 

324.  Belief  of  a  phrty 404 

325.  Intent  of  a  party 405 

326.  Opinions   of   non-experts 406 

327.  Opinions  of   experts — Principles 408 

328.  Experts — Preliminary  examination    409' 

329.  Experts — Province  of  jury 410 

330.  Hypothetical  questions — Fact-*    410 

331.  Hypothetical  questions — Assumptions    412 

332.  Experts — Examination     414 

333.  Experts — Impeachment    41& 

334.  Hearsay   opinion   excluded 41  ft 


SIV  TABLE    OF    CONTENTS 

Section,  Page 

335.  Vital  issues  for  injuiy 417 

336.  Exceptions    to  rule 419 

CHAPTER  XXIV. 
OPINION  EVIDENCE. 

337.  Handwriting — General  principles    420 

338.  Standards  of  'handwriting 4-21 

339.  Comparison    with    standards 423 

340.  Acquaintance   with   writing 424 

341.  Handwriting   witnesses    42i> 

342.  Physical  condition — Medical  experts 426 

343.  Experts  on  permanency  of  injuries 428" 

344.  Experts  in  malpractice  cases 429 

345.  Cross-examination  of  medical  experts 429 

346.  Physical   condition — Non-experts    430 

347.  ^Mental  capacity — General  principles 431 

348.  Mental   capacity — Non-experts    432 

349.  Mental  capartty — Experts    434 

3o0.  Mentality — Weight    of   testimony 435 

3.51.  Damage  to  property 436 

352.  Value  of  real  estate ,  437 

353.  Value  of  personalty 438 

354.  'Services    of    brokers 4.39 

355.  Domestic  services    440 

3o'6.  Services  of  attorneys 441 

357.  Chemical  experts   442 

358.  Steamboat  experts    443 

359.  Railway  experts 443 

360.  Appliances    444 

361.  Rate  of  speed , 446 

362.  Animals     448 

363.  Negligence    448 

CHAPTER  XXV. 
PRIVATE  WRITINGS. 

364.  Primary   evidence 451 

365.  Rule  as  to  collateral  matters 452 

3G6.  .Secondary  evidence — General  rule 453 

367.  Writings  beyond  jurisdiction 454 

368.  Abstracts  of  books 455 

369.  Lost  or  destroyed  writings 455 

370.  Question  of  loss  for  the  court 457 

371.  Notice  to  produce 457 

372.  Notice  must  be  reasonable 458 

373.  Notice  not  always   necessary 459 


TABLE    OF    CONTENTS  XV 

Section  Page 

374.  OrJer   to   produce -IJO 

375.  Inspection  and  copy 401 

376.  Wlien  ninstor  to  inspect 403 

3?7.  Copy  of  instrument 464 

37S.  Proof  of, execution — When  necessary 4G4 

379.  Witnesses  to  ph)ve  execution 46.5 

380.  Exceptions — Ancient   ciocunients,   etc 407 

381.  Introduction    of    writings 4t)8 

382.  Form— Statute  of  frauds 470 

3S3.  Construction   of   writings 473 

CHAPTER  XXVI. 

ACCOUNT-BOOKS. 

384.  Common-law  rule    474 

38.1.  Statutory  rule   475 

356.  Original  entries 4(7 

357.  Subjects  of  book-account 478 

358.  Parol  to  vary  accounts 480 

389.  Book-accounts  of  otliers 480 

390.  Accounts  not  in  books 482 

391.  Business  entries  482 

CHAPTER  XXVII. 
PUBLIC   WRITINGS— LEGISLATIVE  AND   EXECUTIVE. 

392.  General  principles 485 

393.  Acts  of  the  legislature 487 

394.  Foreign  law 488 

395.  Federal  records  and  documents 490 

396.  State  records  and  documents 491 

397.  Articles  of    incorporation 493 

398.  County  records   and   documents 493 

399.  Municipal  records    495 

400.  Records  of  elections 497 

401.  Marriage   certificates    f'OO 

402.  Notarial  certilicates    600 

403.  Piivate   writings   recorded 601 

CHAPTER  XXVIII. 

JUDICIAL  WRITINGS. 

404.  Foreign   records    604 

405.  Former  adjudication   600 

406.  Former  conviction   ' 607 

407.  Correction  of  record 508 

408.  Impeachment  of  record 509 

4f>!).  Questioning   jurisdiction    611 


Xvi  TABLE    OF   CONTENTS 

Section  Page 

410.  Impeachment  of  verdict 513 

411.  Records   of   wills ■ 515 

412.  Trial-court  records    516 

413.  AdjudJcations    as   evidence 518 

414.  Official  papers &19 

415.  Records  and  papers  of  justice 520 

CHAPTER  XXIX. 
THE  PAROL  EVIDENCE  RULE— RULE  OF  EXCLUSION. 

416.  General  principles    521 

417.  Third  persons  not  affected 523 

418.  Rule  as  to  contracts  in  general 523 

419.  Rule  as  to  land  contracts 525 

420.  Rule  as  to  insurance  policies 527 

421.  Rule  as  to  bonds 527 

422.  Rule   as   to  wills 528 

423.  Rule  as  to  commercial  paper — Makers 529 

424.  Rule  as  to  commercial  paper — Indorsens 531 

425.  Rule  as  to  receipts 53'2 

42G.  Rule  as  to  bills  of  ladang 534 

CHAPTER  XXX. 
THE  PAROL  EVIDENCE  RULE— EXCEPTIONS. 

427.  Introductory    536 

428.  Consideration   in  deed? 537 

429.  Consideration   in   notes 540 

430.  Express  parol  trusts 541 

431.  Implied   trusts    643 

432.  Fraud   and   mistake 544 

433.  Conditional    delivery    546 

434.  Subsequent    contract 547 

435.  Incomplete  writing — ^Contracts  in  general .  549 

43'6.  Incomplete  writing — Transfers 550 

437.  Incomplete  writing— 'Suretyship   550 

438.  Custom — General  rule    551 

439.  Custom   and  the  law 552 

440.  Notoriety  of  custom 554 

441.  Usages  of  trade ooo 

442.  Custom — Expert  witnesses   557 

443.  Custom — Practice     557 

444.  Ambiguity    558 

445.  Surrounding  circumstances — ^Contracts 559 

446.  Surroundling  circumstances — Guaranties    561 

447.  Surrounding    circumstances — Wills    olil 

448.  Surrounding  circumstances — Der^d.s    561 


TABLE    OF    CONTENTS  XVH 

Section  ^^8® 

449.  Construction   by  parties ^^''-^ 

450.  Identification  of   parties ^^3 

451.  Relation  of  parties ^^ 

452.  Subject-matter — General  rule    ^^^ 

453.  Subject-matter— Contracts  in  general 565 

454.  Subject-matter— Wills    o^^ 

4o5.  Subject-matter— Insurance  policies    567 

4o'6.  Subject-matter — ^Land   contracts    568 

457.  Subject-matter— The  debt    568 


TABLE  OF  CASES 


[References  are  to   pages.] 


Abrazonine   Co,  v.   Ceramic   Co.    (17 

C.   C.   [N.S.]    2001,   7,   272. 
Accident    Assn.    v.    Harrington    (10 

C.  C.   [N.S.]   134,  20  C.  D.  612), 

143. 
Acklin  V.  Parker    (10  C.  C.   [ISr.S.] 

243,  19  C.  D.  G25),  86. 
Adams  v.  Brig  Pilgrim  (10  W.  L.  J. 

141,  1  0.  D.  P.  477),  533. 
Adams  v.  Brown  (16  O.  S.  75),  215, 

376,  415. 
Adams  v.  Donovan  (07  0.  S.  83),  S3. 
Adams  v.  State   (25  O.  S.  584),  201, 

380. 
Adams  v.  State   (20  0.  S.  412),  111. 
Adams  v.  State   (31   0.  S.  462),  91. 
Adams  v.  State   (14  O.  D.  257),  24, 

116,  446. 
Adams  v.  State  (11  X.  P.  [X.S.]  11, 

25  0.  D.  77),  209. 
Advance  Thresher  Co.  v.  Hogan  (74 

O.  S.  307),  49. 
Aidt  V.   State    (2  C.   C.   IS,   1   C.  D. 

."""),   238,   444. 
Alve:in..n    v.    Lima    (S  0.   IX    430,   7 

N.  P.  92),  17,  20. 
Akron  v.  McC'omb  (18  Oh.  229),  454. 
Akron    v.    Temple    (16  C.    C.    [N.S.] 

327),  452. 
Akron-Sclle    Co.    v.    .Tost    (16    C.    C. 

[N.S.]    333),  473. 
Albatross  (Stbt.)  v.  Wayne   (16  Oh. 

513,  4),  401,  555,  557. 
Alberts  v.  Moller    (8  A.   L.  R.  488, 

G  0.  D.  P.  864),  162. 


Albright  v.  Payne  (43  O.  S.  8),  497. 
Aldrich   v.   Marcellus    (3   C.   C.   500, 

2  C.  D.  287),  395. 
Allen    V.    Davis    (Tappan    60),    482. 
Allen  v.  Everly   (24  O.  S.  97),  51. 
Allen  V.  Lowe   (10  C.  D.  353,  19  C. 

C.  353),  299,  440. 
Allen  V.  Miller  (11  0.  S.  374,  8),  368. 
Allen  V.  Parish  (3  Oh.  107),  156,  277, 

281,  456,  457. 
Allen  V.   Smith    (5  O.  App.  284,  27 

O.  C.  A.  203),  496. 
Allen  V.   State   (10  0.   S.  287),   117. 

334,  381. 
Allen  V.  State  (26  C.  C.  [N.S.]  254), 

180,   187,  26.-). 
Alexander  v.  Jacoby  (23  0.  S.  358), 

■437. 
Alexander    v.    Penn.    Co.    (48   0.    S. 

623),  490. 
Alliance  v.   Campbell    (6  C.   D.   762, 

17  C.  C.  .'iito,  604),  427. 
Alliance   Co.   v.   Valentine    (9  C.   C. 

3S7,  6  C.  D.  .323),  210.. 
Allison  V.   Horning    (22   O.    S.    138), 

161. 
Aim    V.    Andrews    (6   C.    D.    514,   9 

C.  C.  591,  .594),  514. 
Alpin  V.  iMorton   (21  0.  S.  536),  138, 

210,  291. 
Al.liiri"  V.  Iliilse   (Wright  170),  559. 
Americas    v.    McDowell     (16    C.    C 

[N.S.]    573,    27    C.    D.    594),   81, 

398. 
Ames  V.  State  (11  N.  P.  [N.S.]  385, 

22  0.  D.  92),  23. 

3dZ 


XX 


TABLE    OF    CASES 


[References  are   to   pages.] 


Ammon  v.  Johnson    (2   C.  D.  140,   3 

C.  C.  263),  386. 
Ancin  v.   Ksenick    (17   C.   C.    [N.S.] 

310),   147. 
Anderson  v.  Allen   (19  C.  C.   [N.S.] 

51),  310. 
Anderson   v.   Commissioners    (12   O. 

S.  635),  494. 
Anderson  v.  Evans  (3  W.  L.  M.  371, 

2  0.  D.  R.  502),  515. 
Anderson  v.  Foresman  (Wright  59S), 

261. 
Anderson    v.    Fugman     (22     C.     C. 

[N.S.]    283),  84. 
Anderson   v.   Realty  Co.    (19   C.   D. 

267,   9    C.    C.    [N.S.]    473,   496), 

272. 
Andrews  v.  Railway  (8  C.  D.  584,  19 

C.  C.  699),  126. 
Andrews  v.   State    (15  C.  C.   [N.S.] 

241,    23    C.    D.    564),    191,    227, 

323,  515. 
Andrews  v.  Watson   (12  C.  D.  686), 

328,  4.53. 
Andrews  v.  Watson  (12  C.  D.  692), 

115,  276. 
Andy   v.    State    (2   0.  App.    103,   19 

C.   C.    [N.S.]   93,  26  C.  D.  146), 

315. 
Angeloff  V.  State   (91  O.  S.  361,  2), 

183,  320. 
Arbuckle  v.  Spice  Co.   (11  C.  D.  726, 

21  C.  C.  357),  462. 
Arbuckle  v.  Spice  Co.  (11  C.  D.  743, 

21  C.  C.  347),  462. 
Archdeacon  v.  Gas  Co.  (76  O.  S.  97), 

6. 
Arduino,  In  re   (9  N.  P.   [N.S.]  369, 

20  O.  D.  461),   16. 
Armstrong   v.    Clark    (17    Oh.    495), 

340. 
Armstrong   v.   Insurance   Co.    (4  O. 

App.   46,  22   C.   C.    [N.S.]    129), 

60,  294,  417. 
Armstrong   v.    McCoy    (8   Oh.    128), 
456. 


Armstrong  v.  Siddall  (12  C.  D.  627), 

122. 
Armstrong  v.  State   (21  0.  S.  357), 

520. 
Armstrong   v.    Traction   Co.    (10    N. 

r.    [N.S.]    581,    23   0.    D.    215), 

118. 
Aronson  v.  Chair  Co.  (21  C.  C.  [N.S.] 

30),  559. 
Ash   V.   Marlow    (20   Oh.    119),    112, 

329,  376. 
Ashtabula  v.  Bartram    (3  C.  C.  640, 

2  C.  D.  372),   169,   199. 
Ashworth  v.  Carleton  (12  O.  S.  381), 

292,  566. 
Assurance    Co.    v.    Early    (23    C.    C. 

[N.S.]    418),  469. 
Atkins    V.   Ballauf    (1   Dis.    382,    12 

O.  D.  R.  684),  491. 
August  V.  Finnerty  (10  C.  C.  [N.S.] 

433,  20  C.  D.  330),  384. 
Aungst  V.  Creque  (72  O.  S.  551),  530. 
Aufidenmoore  v.  Holzback    (89  O.  S. 

381),  :r:!. 

Austin  V.  Williams   (2  Oh.  61),  557. 
Avery  v.  Stites   (Wright  56),  563. 
Avery  v.  Vansiekle   (35  0.   S.  270), 
406,  530. 


B 


Babcock   v.   May    (4  Oh.   334),   532, 

534. 
Babcock  v.  Camp   (12  0.  S.  11),  506. 
Backenstoe  v.   State    (14  O.  D.  580, 

2  N.  P.   [N.S.]   178),  17,  487. 
Backenstoe   v.   State    (19  C.  C.  568, 

10  C.  D.  688),  335. 
Bacon    v.    Daniels     (37    0.    S.    279, 

281),  143. 
Baggott  V.  Goodwin    (17  O.   S.  76), 

460. 
Bahl    v.    Byal    (90    O.    S.   129),   410, 

431,    432. 
Bailey  v.  Stoneman    (41  O.  S.  148), 

531. 


TABLE    OF    CASES 


XXI 


[References  are   to   pages.] 


Bailus  V.  State    (16  C.  C.  226.  S  C. 

D.  526,  537),  34,  207,  20S. 
Bain  V.  Wilson  (10  0.  S.  14),  122. 
Bainbiidge  v.  State   (30  O.  S.  264 K 

198,  507. 
Baird   v.   Detrick    (20  N.  P.    [N.S.I 

209,  28  0.  D.  110),  282. 
Baird   v.    Detrick    (8   O.    App.    198, 

28  O.  C.  A.  257),  264,  291,  345, 

397. 
Baird  v.  Howard   (51  O.  S.  57),  244, 

303. 
Baird    v.    Telephone    Co.    (10    C.    C. 

[X.S.]    163,   20   C.   D.    107),   54, 

75. 
Baker  v.  Brennan   (12  C.  D.  211.  22 

C.  C.  241 ) ,  232,  281. 
Baker  v.  Jerome  (50  O.  S.  682),  353, 

358,  359,  363. 
Baker  v.  Jordan   (3  O.  S.  4.38,  441), 

551,  568. 
Baker   v.   Kellogg    (29    0.    S.    603), 

353,  359. 
Baldwin  V.  Curth    (9  C.  D.  594,  17 

C.  C.   174,  8),  439. 
Baldwin  v.  Snowden   (11  O.  S.  203), 

501,  545. 
Baldwin  v.  State    (6  Oh.    15),  458, 

517. 
Bank  v.  Baker  (15  0.  S.  68),  490,  552. 
Bank  V.  Bank  (6  C.  D.  452,  10  C. 

C.  233),  454. 

Bank  v.  Bank  (7  0.  App.  68,  28  C. 

D.  106.  27  O.  C.  A.  56),  221. 
Bank  v.  Buckingliam    (12  O.  S.  402, 

406),  304. 
Bank  v.  Cereguti    (21   C.  C.   [N.S.I 

38,  25  C.  1).  393),  53. 
Bank   v.    Chandelier   Co.    (17    C.    C. 

443,  9  C.  D.  807),  521,  522,  560 
Bank  v.  Cole   (83  O.  S.  50,  15  C.  C. 

[N.S.]    315),   501. 
Bank  v.  Cornell   (41  0.  S.  401),  354. 
Bank  v.  Craig  (63  O.  S.  374),  133. 
Bank  v.  Gam    (3  C.  C.   fN.S.]   428, 

13  C.  D.  447),  561,  562. 


Bank  v.  Hardin  (Wright  430).  50.i. 
Bunk  V.  Harding  (5  Oh.  545),  505. 
Bank  v.  Hayes  (64  0.  S.  100),  130. 
Bank  v.   Iron  Co.    (13  N.  P.   [N.S.] 

27,  22  O.  D    6.33),  525. 
Bank  v.  Laidlaw  (86  0.  S.  91),  561. 
Bank  v.  Latimer  (8  C.  C.  [N.S.]  563, 

18    C.    D.    649),    234. 
Bank  v.  Litt    (5  O.  App.  439,  26  C. 

C.  [N.S.]  145,  30  C.  D.  361),  59, 
123. 

Bank  v.  Lloyd   (18  0.  S.  353),  4. 
Bank  v.  Nash   (1   Handy  153,  12  O. 

D.  R.   75),    108. 

Bank  v.  Patton  Co.  (13  C.  C.  [N.S.] 

289,  22  C.  T).  627),  418. 
Bank  v.   Slemmons    (34  0.   S.   142), 

382. 
Bank  v.  Wallace    (Iddinga  13),  454. 
Bank   v.    White    (Wright    51),   519- 

520. 
Bank  v.  Wickham    (6  C.  D.  790,  18 

C.  C.  685),  77. 
Banking  Co.   v.   Gas   Co.    (19   C.   C. 

[N.S.]    151),   530. 
Banning  v.  Banning   (12  O.  S.  437), 

104,  294,  .305. 
Banning  v.  Gotshall   (62  O.  S.  210), 

360. 
Banta  v.  Martin  (38  0.  S.  534),  141. 
Barbour   v.  Miles    (7  C.   D.  682,   14 

C.  C.  628),  144,  163. 

Barger  v.  Railway   (30  C.  D.  61,  28 

0.  C.  A.  92,  96),  463. 
Barnes  v.  Auto  Co.  (13  C.  C.  [N.S.] 

571,  22  C.  D.  233),  74,  105. 
Barnes  v.  State    (15  C.   C.   14,  8  C. 

D.  153),   113,   517. 

Barnett  v.  Ward  (36  O.  S.  107),  140. 
Barnhisel  v.  Bank    (7  C.  D.  533,  14 

C.  C.   124),  .531. 
Barr  v.   Chapman    (30  Bull.  264,   11 

O.    D.    R.    862),    1.55,    164,    467, 

516. 
Barr  v.  C;l()stcrniaii    (2  C.  C.  387,   1 

C.  D.  546),   490,  516. 


xxn 


TABLE    OF    CASES 


[References  are  to  pages.] 


Barrett  v.  Allen    (10  Oh.  426,  431), 

559. 
Barrett  v.  Hart    (42  O.   S.  41),  404. 
Barton  v.  Morris    (15  Oh.  408),  50^. 
Barton  v.  State    (18   Oh.  221,  22.3), 

207. 
Bassenhorst    v.    Wilby     (45    O.    S. 

33.3),  112,  .5.32. 
Baseett  v.  Avery  (15  O.  S.  200),  105. 
Bates    V.    State     (10    C.    D.    180,    0 

C.  C.  [N.S.]   273,  282),  234,  .500. 
Baiim  V.  State   (6  C.  C.   [N.S.]   515, 

17  C.  D.  569),  101,  254,  395,  300, 

483. 
Baumgardner  v.   IMollenkopf    (65  O. 

S.   612),  550. 
Baxter  v.  Leith    (28  O.  S.  84),  363, 

477,  479. 
Baxter  v.  State   (91   0.  S.   167),  01, 

207,  303. 
Bayes  v.  Zimmerman    (10  W.  L.  J. 

240,   1  O.  D.  R.  500),  20. 
Bayles  v.  Grossman   (5  A.  L.  R.  13, 

5  O.  D.  R.  354),  542. 
Bean   v.  Green    (.33  O.  S.  444),   144, 

160.    208,    201,    300,    307,    346, 

380,   388,  408. 
Beardsley  v.   Foot    (14  O.    S.   414), 

232. 
Beatty  v.  Hatcher  (13  O.  S.  115,  9), 

•  58. 
Beaver  v.   Blind  Asylum    (19  O.   S. 

07,  108),  8. 
Beck  v.  Gage  (21  C.  C.  [N.S.]  160), 

243. 
Beckel  v.   Insurance   Co.    (15  N.   P. 

[N.S.]    266),    130. 
Beckwith  v.  Telephone  Co.   (17  C.  C. 

[N.S.]    527),  478. 
Beebe    v.    Scheidt    (13    O.    S.    406), 

494. 
Beecher   v.   Dunlap    (52    O.    S.    64), 

124,  302,  547. 
Beer  v.  Insurance  Co.  (39  O.  S.  109), 

532. 


Beeson  v.  Criss    (7  O.  App.   482,  27 

0.  C.  A.  4.54,  20  C.  D.  309),  448. 
Beetz  V.  Strobel    (6  O.  D.   143,  4  N. 

P.  166),  147. 
Behrens  v.  Behrens    (47  0.  S.  323), 

27,  31,  104,  205. 
Bell  V.  Brewster  (44  O.  S.  690),  153, 

164,  170,  201,  421,  422,  423,  467, 

468. 
Bell    v.    McGiniiess    (40   O.    S.    204), 

102. 
Bell  v.  Rinner   (16  0.  S.  45,  40),  392. 
Bell  V.  State   (7  O.  App.   185,  27  O. 

C.  A.  3.53,  29  C.  D.  48),  510. 
Bell  V.  Wilson    (17  O.  S.  640),  359. 
Benckenstein    v.    Schotfe    (92   O.    S. 

29),  332. 
Bender   v.  Buehrer    (8  C.  C.   244,  4 

C.  D.  .507),  318. 
Bender  v.   Hanna    (16   C.   C.    [N.S.] 

387),  134. 
Benedict   v.    State    (44   O.    S.    679), 

303,  346,  403,   419. 
Benefit    Assn.   v.   Harding    (7    C.    C. 

438,  4  C.  D.  668),  68,  399. 
Bennett  v.    Shaw    (5   C.   D.  480,   12 

C.  C.  574),  474,  475,  476. 
Bennett  v.  State   (10  C.  C.  84,  4  C. 

D.  129),  379. 

Benninger    v.    Hess    (41    0.    S.    64), 

140,  275. 
Benson  v.  Stein   (34  0.  S.  294),  5,  7. 
Benster  v.   Powell    (5  C.  D.  206,   II 

C.  C.  401),  234. 
Bentley    v.    Dorcas     (11    O.    S.   398, 

400),  2. 
Bcrdan  v.   Bour   Co.    (10  C.   C.   127, 

6   C.   D.    1.54).  260. 
Beresford   v.    Stanley    (9  0.   D.    134, 

6  N.  P.  38),  105,  113,  136,  410. 
Bergin  v.  State  (31  O.  S.  Ill),  97. 
Berman  v.   State    (25  C.  D.   386,   16 

C.  C.    [NS.l    106),   176,  258. 
Bernhardt    v.    Bernhardt     (7    C.    C. 

[N.S.]  517,  18  C  D.  686),  542. 
Berry  v.  Collins    (9  C.  C.   656,  6  C. 

D.  597),   159,  232. 


TABLE    OF    CASES 


XXlll 


[References  are  to  pages.] 


Berry  v.  State    (31  0.  S.  219),   11:5, 

167,   381,   300. 
Berwanger  v.  Bristol   (3  N.  P.   101, 

3  O.  D.  683),  417. 
Besiiden  v.   Hamilton   Co.    (7   C.    C. 

237,  4  C.  D.  575),  316. 
Bethel  v.  Railway    (15  C.  C.  381,  8 

C.  D.  310),  24. 
Bethel  v.  Woodworth  (11  O.  S.  393), 

532,  549. 
Bettman  v.  Hunt  (12  Bull.  286),  358. 
Bevington   v.    State    (2   0.   S.   160), 

468. 
Bickerstaflf  v.  Hingsley    (1   O.   App. 

91,  10  C.  C.   [N.S.]   384),  387. 
Bigalow  Fruit  Co.  v.  Huxley   (23  C. 

C.  [X.S.]    479),    208. 

Bird  V.  Hueston  (10  0.  S.  418),  221, 

532. 
Bird   V.   Young    (56  O.   S.  210,   23), 

338. 
Bishop  V.  Gazette  Co.   (4  Bull.  1082, 

7  0.  D.  R.  711),  15. 
Bissell  V.  Jaudon  (16  0.  S.  498),  31. 
Black   V.    Chester    (12    0.    S.    621), 

482. 
Black   V.   Hill    (32   0.    S.   313),   294, 

507. 
Blackburn  v.  Blackburn  (8  Oh.  81), 

294,  456,  457,  472. 
Blackburn  v.  State  (23  O.  S.  140^ 

161,  236,  255,  256,  257. 
Blair  v.  State  (5  C.  C.  496,  3  C. 

D.  242),  267. 

Blakeslee  v.  Hughes,  50  O.  S.  490), 

41,  182. 
Bloom   V.   Brownell    (12  O.   D.    87), 

531. 
Bluff  V.  State  (10  O.  S.  547),  196. 
Bly  V.  Smith   (94  O.  S.  110),  47. 
Blymyer  v.   Header    (3  O.  D.  52,   1 

N.  P.  355),  280. 
Blythe  v.  State   (47  O.  S.  234),  318. 
Board  of  Education  v.  Cosgrove  (11 

C.  C.  163,  5  C.  D.  343),  506. 


Board  of  Education  v.  Mills  (38  O. 

S.   383),   292. 
Board   of   Missions   v.  Bevan    (2  O. 
App.   182,   17   C.   C.   [N.S.]    275, 
24  C.  D.  318,  28  O.  C.  A.  217), 
411,  433. 
Bobo  V.   WoU    (IS  O.   S.  463,  465), 

561. 
Bode  V.  Werner  (4  C.  C.  [N.S.]   158, 

16  C.  D.  206),  59,  73,  131. 
Boepple  V.  ilellert   (24  C.  C.   [X.S.] 

409),  205. 
Boest  V.   Doran    (2   C.  L.  R.   313,  4 

O.  D.  R.  525),  471. 
Bogart  V.  Cox   (4  C.  C.  289,  2  C.  D. 

551),   364,    476,    477,    478. 
Boggs  V.  Haley  (22  C.  C.  [N.S.]  63), 

239. 
Boggs  V.  Taylor  (26  0.  S.  604),  473, 

567. 
Bolen  V.  State   (26  O.  S.  371),  301. 
Bolsinger    v.    Halliday    (4    0.    App. 

311,  22  C.  C.   [N.S.]   289),  88. 
Bolton  V.  Cleveland   (35  0.  S.  319), 

17,  37,  109. 
Bomberger  v.  Turner  (13  O.  S.  263), 

2. 
Bond  V.  State  (23  0.  S.  349),  10,  97. 
Bond    Hill   v.    Atkinson    (16    C.    C. 

470,  9  C.  D.  185),  169,  279. 
Bonebrake    v.    Columbus     (6    N.    P. 
[N.S.]    41,   18   O.   D.   367),   143. 
Bonnet   v.   Dickson    (14   O.  S.   434), 

328. 
Boone  v.  Andrews    (10  C.  C.   [N.S.] 

377,  20  C.  D.  166),  85,  541. 
Boone  v.  Cincinnati   (13  O.  D.  256), 

558. 
Boswell  V.  Insurance  Co.    (26  C.  O 

[N.S.]  385),  129. 
Boughman   v.   Boughman    (69  O.   S. 

273),    84,   541. 
Boviard   Co.   v.  Maitland    (92  O.  S' 
201,  206),  122,  173. 
;    Bowden  v.  Hank   (12  Bull.  184,  9  O, 
D.  R.  333),  552. 


XXIV 


TABLE    OF    CASES 


[References  are   to   pages.] 


Bowe  V.  Bowe    (5  C.  C.   [N.S.]   233, 

16  C.  D.  409),  177,  445. 
Bowers  v.  State   (29  O.  S.  542),  184, 

344. 
Bowman  v.  Hartman  (6  C.  C.  [N.S.] 

264,   17  C.  D.  309),  298. 
Box  Co.  V.  Paper  Co.  (4  C.  C.  [N.S.] 

17,   16  C.   D.   27),   546. 
Boyd  V.   Sell    (Tappan  43),   120. 
Boyd  V.   State   (81   0.   S.   239,  242), 

203. 
Boyer    v.    Boyer    (14    C.    C.    [N.S.] 

305,  23  C.  D.  279),  77. 
Boyle  V.  State  (6  C.  C.  163,  3  C.  D. 

397),  176,  453. 
Boynton  v.  Strauss  (18  C.  C.  [N.S  ] 

229),  84. 
Brachman  v.   Hall    (1    Dis.   539,    12 

O.  D.  R.  782),  424. 
Bradford  Belting  Co.  v.  Gibson   (68 

0.  S.  442),  273. 
Bradford    v.    Watts     (Wright   495), 

509. 
Bradstreet   v.   Pross    (11    Bull.    117, 

9  0.  D.  R.  154),  308. 
Bradley  v.  Wacker   (7  C.  D.  565,  13 

C.  C.  530),  108. 
Brady  v.   Palmer    (10  C.   D.   27,    19 

C.  C.  687),  486,  489,  505. 
Brady  v.  Supply  Co.   (64  O.  S.  267), 

18. 
Bragg  V.  Colwell  (19  O.  S.  407),  422. 
Bramble    v.    Ward    (40    O.    S.   267), 

55. 
Brandon  v.   Railway    (8   C.   D.   642, 

17  C.  C.  705),  66,  309,  389,  450. 
Breck  v.  State  (4  C.  C.  160,  2  C.  D. 

477),  91,  158,  372,  426. 
Breckenridge  v.  State   (4  O.  D.  380, 

3  N.  P.  313),  442. 
Brennen  v.   Cist    (9  O.   D.   18,  6  N. 

P.  1),  326. 
Brewing  Co.  v.  Bauer  (50  O.  S.  560), 

153,  155,  156,  170,  174,  200. 
Brewing  Co.  v.  Betz   (8  C.  C.  [N.S.] 
64,    18    C.    D.    484),   144. 


Brewing  Co.  v.  Hardway  (2  0.  App. 

171,  17  C.  C.    [N.S.]   475,  26  C. 

D.  443),  87,  4.5.5. 
Brewing  Co.  v.  Opp   (9  C.  D.  516,  17 

C.  C.  465),   161,  410,  430. 
Brewing    Co.   v.    Schultz    (68    O.   S. 

407),  62. 
Brewing    Co.    v.    Ulland     (97    O.    S. 

210),   134. 
Brick    Co.    v.    Chojnicki     (14    C.    C. 

[N.S.]   599,  23   C.  D.  3i56),  163, 

241. 
Brick   Co.   v.   Foundry    (7    A.   L.   R. 

548,  6  0.  D.  R.  713),  547. 
Brick     Co.     v.     Koblitz     (22    C.     C. 

[NS.]    ,580),  132. 
Bridge    v.    State    (20    C.    C.    [N.S.] 

231),   80. 
Brink  v.  Stratton   (176  N.  Y.   150), 

342. 
Brinker   v.    Schreiber    (9   Bull.    294, 

8  0.  D.   R.   759),  359,   363. 
Brinkman  v.  Lumber  Co.   (16  C.  C 

[N.S.]    537),   106. 
Britton  v.  Granger   (7  C.  D.  182,  13 

C.  C.  281),  182. 
Broadrup    v.    Woodman     (27    0.    S. 

553),  8,   542. 
Brock  V.  Milligan  (10  Oh.  121),  342, 

383. 
Brockmeier  v.   Buck    (12   Bull.   213, 

9  0.  D.  R.  353),  432. 
Brockway  v.  Warren   (24  0.  D.  311. 

11   N.  P.    [N.S.]    228,  2.32),  4.57. 
Bronson  v.  Metcalf  (4  W.  L.  G.  115, 

1  Disney  21),  330. 
Brown   v.   Burdick    (25   O.    S.   260), 

516. 
Brown  v.  DeLong    (6   N.   P.    [N.S.] 

510,  18  O.  D.  474),  21. 
Brown  v.  Dusha   (1  0.  App.  232,  20 

C.  C.   [N.S.]   310,  25  C.  D.  437), 

123. 
Brown  v.  Farr  (19  C.  C.  [N.S.]  578, 

25  C.  D.  466),  145. 


TABLE    OF    CASES 


XXV 


[Rererences  are   to   pages.] 


Brown   v.   Hunkin    (2   C.   L.   R.   28, 

4  O.  D.  R.  502),  383. 

Brown  v.  Mfg.  Co.   (26  C.  C.   [\.S.] 

401),  144. 
Brown  v.  Mott   (22  0.  S.  140),  9. 
Brown  v.  State   (IS  O.  S.  496),  3:5.1, 

340. 
Brown  v.  State  (26  O.  S.  176),  203, 

204. 
Brown    v.    State    (13    C.    C.    [N.S.] 

138),   IBo,  102. 
Brown  v.  Willis   (13  Oh.  26),  540. 
Brumbaugh   v.    Chapman    (45   O.    S. 

368,  375),  538. 
Bruner  v.  Briggs  (39  O.  S.  478,  480), 

219. 
Brunk  v.  Railroad   (20  N.  P.  [N.S.] 

3C0,  2S  O.  D.  320),  171. 
Buckingham    v.    Carter     (2    Disney 

41),  358. 
Buckingham  v.  Hanna   (2  O.  S.  551), 

517. 
Bucklin    V.    State    (20    Oh.    18,   23), 

185,  186,  300,  391. 
Buddenburg    v.    Wearsch    (20    C.    C. 

[N.S.]  372),  127. 
Buggy  Co.  V.  Parker   (17  C.  D.  115, 

5  C.  C.    [N.S.]   383,  385),  565. 
Building   Assn.   v.    Clark    (43   0.    S. 

427),  2. 
Building   Assn.    v.   Hayes    (2    C.    C. 

225,  1  C.  D.  456),  480. 
Building    Assn.    v.    Lotze    (11    Bull. 

285,  9  0.  D.  R.  248),  232. 
Building  Co.  v.   Klussman   (2  C.   C. 

[N.S.]   83,  15  C.  D.  728),  200. 
Bullock  V.  Bullock   (15  O.  D.  783,  3 

N.  P.    [N.S.]    190,  2),  85. 
Bumiller  v.  Walker    (95  0.  S.  344), 

49. 
Bunner  v.  Ison   (8  C.  C.   [N.S.]   260, 

18  C.  D.  459),  297,  464,  467. 
Burch   V.   State    (5  O.  D.   137,  7   N. 

P.  379),  299,442. 


Burckhardt    v.    Burokhardt    (42    O. 

S.    474,    499),    154. 
Burdge  v.  State  (53  O.  S.  512),  113, 

167,    249. 
Burke   v.    Cincinnati    (8    N.    P.    109, 

10  O.    D.   542),  487. 

Burke   v.   Railroad    (96   O.   S.   496), 

128. 
Burke  v.  State   (34  0.  S.  79),  493. 
Rurnet  v.  Brush   (6  Oh.  32),  501. 
Burnham  v.  Aver   (3  0.  D.  R.  327), 

421,  466. 
Burns  v.  Columbus  (13  N.  P.  [N.S.] 

508),   190. 
Burns  v.   State    (75  O.   S.  407),  96, 

165,  191,  382, 
Burnside  v.   Dewstoe    (15  Bull.    197, 

9  0.  D.  R.  .589),  330. 
Burr  V.   Shute    (2  C.  C.    [N.S.]   343, 

14  C.  D.  62),  477. 
Burrage   v.  Beardsley    (16  Oh.  438), 

539. 
Burridge  v.  Bank  (Wright  688),  243, 

454. 
Burt   V.  State    (23  O.  S.  394),  265, 

307,  398. 
Burton    v.   Granite   Co.    (5   0.   App. 

117,  25  C.  C.   [N.S.]   470,  27   C. 

D.   1.34),   131. 
Buschmeyer    v.    Machinery    Co.     (7 

0.  App.   202,   27   0.   C.   A.  337, 
29  C.  D.  207),  564. 

Business  College  v.  Lloyd   (60  O.  S. 

448),  131. 
Butt  V.  Worthington   (12  C.  D.  775, 

11  C.  C.   [N.S.I   371),  356. 
Buttemiller   v.    Schmid    (4   0.   App. 

100,  26  C.  D.  50,  25  C.  C.  [N.S.] 

1,  203),   100,    116. 

Byers  v.  Wackman    (16  O.  S.  440), 

544. 
Byrd  v.  Blessing  (11  O.  S.  362),  127. 
Byrne   v.   Wood    (9  Bull.   308,  8  O. 

D.  R.  760),  20. 


XXVI 


TABLE    OF    CASES 


[References  are   to   pages.] 


Cable  V.  Bowlus   (21  C.  C.  53,  11  C. 

D.   526),  202,  240. 
Caldwell  v.  Carthage   (40  O.  S.  453), 

559. 
Calkins  v.  State  (14  0.  S.  222),  421". 
Calkins  v.  State  (18  O.  S.  366),  493. 
Calvin  v.  State  (12  O.  S.  60),  510. 
Campanario     v.     State     (17     C.     C. 

[N.S.]    388),  92. 
Campbell  v.  Campbell   (2  C.  D.  256, 

3  C.  C.  449, -453),  15. 
Campbell  v.  State   (15  C.  C.   [N.S.] 

574,  26  C.  D.  171),  157. 
Canfield  v.  Film  Exchange  (14  C.  C. 

[N.S.]    143,  23  C.  D.   157),  418. 
Canter  v.  State  (90  0.  S.  1),  518. 
Canton  v.  Pryke   (5  0.  App.  364,  26 

C.  C.  [N.S.]  465,  27  C.  D.  536), 

130. 
Carano  v.  State  (3  C.  C.  [N.S.]  629, 

14  C.  D.  93,  100),  44. 
Carey  v.  State  (70  O.  S.  121,  126), 

116,  379. 
Carl  V.  Pierce   (20  C.  C.  68,  10  C.  D. 

711),  179. 
Carmack  v.   State   (13   C.  C.   [N.S.] 

362,  22  C.  D.  55),  80. 
Carpenter  v.  Denoon  (29  0.  S.  379), 

516. 
Carpenter  v.   State   (12  O.   S.  457), 

486. 
Carpenter  v.  Warner  (38  O.  S.  416), 

75. 
Carr  v.  Dovlosky    (17   C.  C.   [N.S.] 

300),  232,  262. 
Carr  v.  State  (11  C.  D.  353,  21  C.  C. 

43),  99,  164,  189,  207. 
Carroll  v.  Olmstead  (16  Oh.  251,  7), 

156. 
Carson,  In  re    (12  O.  D.   565,  568), 

50. 
Carter  v.  Day  (59  O.  S.  96),  538. 
Carter  v.  State    (4  O.  App.   193,  22 

C.  C.   [N.S.]    154),  93,  418. 


Cartmell  v.  Wiirlitzer  (18  0.  D.  387, 

5  N.  P.  [N.S.]  604),  108. 
Case    V.   Heffner    (10  Oh.    180),   501. 
Case    V.    Wresler    (4    O.    S.    561,  2), 

110. 
Cassidy   v.   Traction    Co.    (21    N.   P. 

[N.S.]    125,    29    O.   D.    6),    225, 

496. 
Caasllly  v.  Cassilly   (57   0.   S.  582), 

531,  545. 
Castings   Co.   v.   Luscomb    (6   C.   D. 

313,  19  C.  C.  673),  100,  107,  445. 
Catholic  Knights  v.   Connema   (3  C. 

C.  130,  2  C.  D.  74),  273. 
Cereal  Co.  v.  Boltz   (21  C.  C.   [N.S.] 

532),  199,  291. 
Cessna  v.  Breen   (22  Bull.  278),  526. 
Chaffee  v.  Garrett    (6  Oh.  421),  540. 
Cliallen  v.  Cincinnati  (40  O.  S.  113), 

10. 
Chamberlain  v.  Cleveland    (34  O.  S. 

551),  497. 
Chamberlain   v.   Railroad    (15    0.    S. 

225,  250),  138,  141,  541. 
Chambers  v.  Frazier   (29  0.  S.  362), 

4. 
Chambers  v.  Meade   (15  C.  C.  [N.S.] 

352),  116. 
Chambers  v.  Wilcox    (15  0.  D.  629, 

3  N.  P.    [N.S.]   269),  242,  278. 
Champion  v.  State   (6  C.   D.  777,  9 

C.  C.  627),  206,  209. 
Chapman  v.  Seely  (4  C.  D.  395,  8  C. 

C.  179),  303,  516,  517. 
Charch    v.    Charch    (57    O.    S.   561), 

528,  561,  567. 
Chase   v.   Brundage    (58   O.    S.   517, 

25),  81,  132. 
Cliase   V.    Washburn    (1    O.    S.    244, 

252),  553. 
Chatfield  &  Woods  Co.  v.  Eckert  (2 

O.  L.  R.  440,  71  O.  S.  544),  125. 
Cheadle  v.  State   (4  O.  S.  477,  478), 

78,  79,  80. 


TABLE    OF    CASES 


XXVll 


[References   are    to   pages.] 


Cheesemnn    v.    Kyle    (1")    O.    S.    151, 

243. 
Cheney  v.  State  (7  Oh.  [Tt.  1]  222 1, 

207. 
Chicko    V.    State    (24   C.    C.    [X.S.I 

5711),  311. 
Chillicothe  v.  Gas  Co.   (11  0.  D.  2!, 

8  N.  P.  88),  17. 
Cliittenden    v.    Columbus    (IG    C.    D. 

531,  5  C.  C.  [X.S.]  84),  19. 
Choteau  v.  Raitt   (20  Oh.  132,  146), 

40,  458. 
Choteau  v.  Thompson  (3  0.  S.  424), 

329. 
Church  V.  Crocker  (7  C.  C.  327,  4  C. 

D.   610),   125,  413. 
Church  V.  Tennington    (10  C.  D.  74, 

18  C.  C.  408),  521. 
Church  Co.  v.  Shartel,  Iddings(117), 

545. 
Cincinnati    v.    Cameron     (33    O.    S. 

336),  300,  419. 
Cincinnati,  ex  rel.,  v.  Cincinnati  (11 

C.  C.  309,  5  C.  D.  372,  377),  25. 
Cincinnati    v.    Ferguson    (12    0.    D. 

439,  482),  24. 
Cincinnati   v.  Frazer    (9   C.   D.   487, 

18  C.  C.  50),  106. 
Cincinnati   v.  Hamilton    Co.    (7    Oh. 

[Pt.  1]  88,95),  14. 
Cincinnati  v.  Henkel  (3  0.  App.  339, 

21  C.  C.  [N.S.]  21),  241. 
Cincinnati   v.   Hosea    (19   C.   C.  744, 

10  C.  D.  618),  506. 
Cincinnati  v  Johnson    (7   C.   C.    [N. 

S.]  167,  18  C.  D.  377),  7. 
Cincinnati    v.    Lead    Co.    (44   O.    S. 

24.3),  11. 
Cincinnati   v.  McLaughlin    (12  C.  C. 

[N.S.]   220,  21  C.  D.  503),  67. 
Cincinnati  v.  Osborne   (27  C.  D.  108, 

24  C.  C.  [N.S.I  463),  266. 
Cincinnati  v.  Polster  (96  O.  S.  155), 

109. 


CinciTinati    v.    Roettingcr    (11    C.    C, 
IX.S.]    .501,  21    C.  D.  252),  294, 

296,  298. 
Cincinnati   v.   Wright    (2  N.    P.    [X. 

S.]  53,  14  0.  D.  600),  436. 
Cincinnati   College  v.   LaPvue    (22  O. 

S.  469),  110. 
Circleville  v.  Sohn    (11  C.  D.  193,  20 

C.    C.    368),    141,    199,   303,   309, 

310,  311,  379. 
Circleville  v.   Throne    (1   C.   C.   359, 

1  CD.  200),  274. 
Citizens'  Ey.  v.  Bell  (5  C.  C.  fX-S.] 

321,  16  C.  D.  691),  105. 
C  lapp  V.  Banking  Co.    (50  O.  S.  528, 

540),  523,  564. 
Clark  V.  Boyd   (2  Oh.  50),  299,  465, 

466. 
Clark  V.  Irwin  (9  Oh.  131),  9,  519. 
Clark  V.    Longworth    (Wright    ISO), 

453. 
(lark  V.  ]\rcFarland   (99  O.  S.  100), 

1.36. 
Clark  V.  Seminary   (2  C.  D.  87,  3  C. 

C.  152),  529,  558. 
Clark  V.  State   (12  Oh.  483),  92,  98, 

410,  426,  435. 
Clark  V.  Stitt   (4  C.  D.  51,  12  C.  C. 

759),  129. 
Clawson    v.    State     (14    O.    S.    234, 

239),  282,  287,  288. 
(lay  Co.  V.  Chojnicki   (14  C.  C.   [N. 

S.]  599,  23  C.  D.  356),  163.  241. 
Clayton  v.  Freet   (10  0.  S.  544),  82, 

85. 
Cleveland  v.  Baker   (25  C.  C.   [X.S.] 

369,  4  O.  App.  68),  202. 
Cleveland  v.  Beaumont   (4  Bull.  345, 

4  O.  D.  R.  444),  4!)6. 
Cleveland  v.  Payne    (72  0.  S.  347), 

274. 
Cleveland  City  Ry.  v.  Conner  (74  0. 

S.  225),  261. 
Cleveland   Ry.    v.   Hunter    (10   C.  C. 

[N.S.I  561,  12  C.  1).  7(19),  174. 


XXVlll 


TABLE    OF    CASES 


[References  are  to   pages.] 


Cline  V.  State    (43  O.   S.  332),  118, 

212. 
Clinton  v.  State  (33  O.  S.  27),  342, 

383. 
Clipper  V.  Logan   (18  Oh.  375),  388, 

443. 
Cloak  Co.  V.  Credit  Co.  (17  C.  C.  [N. 

S.]   559,  5(10),  129,  131. 
Close  V.  Parker   (11  C.  C.  [N.S.]  85, 

20  C.  D.  384),  100. 
Clutch   V.   Ebright    (5   O.  App.   440, 

27  O.  C.  A.  251),  85. 
Coal  &  Iron  Co.  v.  Tucker  (48  0.  S. 

41,  60),  553,  557. 
Coal   Co.   V.    Bank    (6   C.   C.    [N.S.] 

225,  17  C.  D.  297),  298. 
Coal  Co.  V.  Coal  Co.   (86  O.  S.  140), 

61. 
Coal    Co.    V.    Davenport    (37    O.    S. 

194),  279,  405. 
Coal   Co.   V.   Estievenard    (53  O.    S. 

43),  123. 
Coal  Co.  V.  Hughes   (9  C.  C.  [N.S.] 

121,  19  C.  D.  139),  556. 
Coal  Co.  V.  Jones   (20  C.  D.  588,  11 

C.  C.  [N.S.]  293,  295),  402,  448, 

449. 
Coal    Co.    V.    McFadden     (90    O.    S. 

183).,  107. 
Coal  Co.  V.   Mining   Co.    (40  O.    S. 

559),  562. 
Coal  Co.  V.  Moherman  (9  C.  C.  544, 

6  C.  D.  437,  440),  321. 
Coal  Co.  V.  Rivoux  (88  O.  S.  18),  63. 
Coal   Co.   V.   Sunday   Creek  Co.    (12 

N.  P.   [N.S.]   641),  532. 
Coal  Mining   Co.   v.   Jones   Co.    (15 

C.  C.  [N.S.]  369),  129,  130,  439. 
Coble  V.   State    (31  O.  S.   100,  102), 

206,  382,  383,  384. 
Coblentz    v.    State    (84   O.   S.    235), 

197. 
Cochran   v.   Almack    (39  O.   S.   314, 

316),  354,  367. 
Cochran   v.   State    (25   C.  C.    [N.S.] 

430),  249,  454. 


Coffinberry    v.   Blakeslee    (22    C.   C. 

[N.S.]   34,   28    C.   D.    462),  470, 

489. 
Cogswell  Co.  V.  Sibley  (17  C.  C.  [N. 

S.]   3),  442. 
Cole  V.  Bank   (83  O.  S.  50),  568. 
Cole  V.  Bank  (15  C.  C.   [N.S.]  315), 

540,  568. 
Cole  V.  McClure  (88  O.  S.  1),  31,  82, 

87,  104,  456. 
Coles  V.  State   (3  C.  C.   [N.S.]   420, 

13  C.  D.  313),  91,  341. 
Collins  V.   Hope    (20   Oh.   492),  528, 

543. 
Collins   V.   Insurance   Co.    (17   0.   S. 

215),  529. 
Columbus   V.  Bidlingmeier    (7   C.    C. 

136,  3  C.  D.  698),  316. 
Commissioners  v.  English  (19  C.  C. 
.  [N.S.]   566,  25  C.   D.  246),  322. 
Commissioners  v.  Whisler   (82  0.  S. 

234,  235),  52,  110. 
Compton   Co.  v.   Stewart    (25   C.   C. 

[N.  S.]   270,  27   C.  D.  428),  13, 

133. 
Conahan  v.  Purcell   (6  Bull.   122,  8 

0.  D.  R.  161),  32. 
Conett  V.  Squair   (17  O.  D.  65,  3  0. 

L.  R.  558),  360,  365,  551. 
Conklin  v.  Hancock   (67  O.  S.  455), 

539. 
Construction   Co.   v.    Lakewood    (17 

C.  C.   [N.S.]   165),  4. 
Cook  V.  Prosser   (7  C.  D.  619,  14  C. 

C.  137),  39. 

Cook  V.    Slate   Co.    (36   O.   S.    135), 

227,  293, 
Cook  V.  State  (3  W.  L.  G.  344,  3  O. 

D.  R.  136,  7),  335. 

Coolidge  V.  Smith  (5  N.  P.  [N.S.] 
481,  18  0.  D.  151),  544. 

Coombs  V.  Lane  (4  O.  S.  112),  28. 

Cooper  V.  West  (3  Bull.  431,  7  O.  D. 
R.  470) ,  365. 

Corbett  v.  State  (3  C.  D.  79,  5  C. 
C.  155),  158,  285,  469. 


TABLE    OF    CASES 


XXIX 


[References  are   to   pages.] 


Cordage  Co.  v.  Cordage  Co.   (C  C.  C. 

615,  3  C.  D.  613),  286,  2<)4. 
Cordes  v.  State  (4  N.  F.  14,  6  O.  D. 

5),  214. 
Cornell  v.  Morrison   (87  0.  S.  215), 

13,  133. 
Corry   v.    Campbell    (25    0.   S.    134, 

40),  2,  56. 
Corry  v.  Gaynor  (22  O.  S.  5S4),  404. 
Corwin  v.  Cook  (8  Bull.  4,  12  Bull. 

157),  530. 
Cosgrove  v.   Schaefer   (15  Bull.  8,  9 

0.  D.  R.  550),  223. 

Costello    V.    Henkel     (3!»    Bull.    !).">), 

554. 
Coston   V.   Paige    (0  0.   S.  397),  53, 

108,  307. 
Cottell  V.  State    (5  C.  D.  472,  12  C. 

C.  467,  472),  243,403. 
Cotton  V.  Ashley  (7  C.  D.  242,  13  C. 

C.  535,  538),  295,  363. 
Courtright    v.    Staggers     (15    0.    S. 

511,  514),  242,  297,  298. 
Cowan    V.    Kinney    (33   O.    S.    422), 

276,  390. 
Cowan  V.  Ladd  (2  O.  S.  322),  329. 
Crabtree    v.    State    (30    0.   S.   382), 

201. 
Craig   V.   State    (5   O.   S.   605,   607), 

391. 
Cram  v.  Spear  (8  Oh.  494,  496),  364, 

475,  476,  477,  478. 
Crary  v.   McCrory    (9  N.  P.   [N.S.] 

1,  20  O.  D.  110),  455. 
Crawford  v.  Merrell  (5  O.  App.  146, 

25   C.    C.    [N.S.]    537,   27   C.    D. 

104),  117,  131. 
Creamer    v.    Harris    (90   0.    S.    160), 

48. 
Creed  v.  Bank  (1  0.  S.)   1),  30,  542. 
Creed  v.  Henkel   (9  C.  D.  861,  18  C. 

C.  883),  563. 
Crofton   V.  Board  of  Education    (26 

O.  S.)  571),  8. 
Cromley  v.  State    (19  C.  C.   [N.S.] 

526,  26  C.   D.   209),  93,   122. 


Crosby  v.   Crosby   (10  C.   C.   [N.S.] 

57,  20  C.  D.  14),  31. 
Crosier  v.  McNeal    (17   C.  C.  C44,  G 

C.  D.  748),  226. 
Cross  V.   Armstrong    (44  O.   S.   613, 

622),  15. 
Crow  V.  Jordon   (49  O.  S.  655),  1C4, 

314. 
Crowell  V.  Bank  "(3  O.  S.  406),  276, 

329,  401,  402,  409. 
Crusen  v.  State    (10  0.  S.  258),  92, 

333. 
CuUen  V.  Bimm   (37  O.  S.  236),  160. 
Cummings   v.   Kent    (44   0.    S.    92), 

531. 
Cummings  v.  Bitter  (33  Bull.  202), 

547. 

D 

Dabbert  v.  Insurance   Co.    (2   C.   S. 

C.  R.  98),  260. 
Daley  v.  Brotherhood   (7  N.  P.   [N. 

S.]  238,  19  O.  D.  60),  271. 
Dallas    V.    Ferneau    (25    0.    S.    635, 

638),  5. 
Dalrymple  v.  State    (5  C.  C.   [N.S.] 

185,  16  C.  D.  562),  28,  36,  499. 
Dalrymple  v.  Wyker  (60  O.  S.  108), 

541. 
Daniel  v.   Downing   (26  0.   S.  578), 

501. 
Dannemiller    v.    Leonard    (15    C.    C. 

686,  8  C.  D.  73.-)),  218. 
Dannemiller   v.    Zimmerman    (22    C- 

C.  [N.S.]  545),  129. 
Darling  v.  Hippel   (12  C.  D.  754),  9. 
Daugherty    v.    O'Connell     (12    Bull. 

261),  323. 
Davenport  v.  Sovil  (6  O.  S.  459),  85, 

545,  546. 
Davey  v.  Miller   (37  Bull.  203),  145. 
Davider  v.  Railway  (20  C.  C.  [N.S.] 

165),  173,  260. 
Davidson    v.    Telephone    Co.     (5    O. 

App.   237,  26  C.  C.    [N.S.]    273, 

27  C.  D.  415),  179. 


XXX 


TABLE    OF    CASES 


[References  are   to   pages.] 


Davis   V.   Coffield    (6  W.   L.   J.   318, 

1  O.  D.  R.  267),  539. 
Davis  V.   Davis    (11   0.   S.  386),  38, 

511. 
Davis  V.  Gray  (17  O.  S.  330),  491. 
Davis   V.  Guarnieri    (45   0.   S.   470), 

100,  138,  139,  171. 
Davis  V.  Herrick   (.6  Oh.  55),  112. 
Davis  V.  Railway    (15  N.  P.   [X.S.] 

416,  24  0.  D.  172),  133. 
Davis  V.  State  (19  0.  S.  217),  162. 
Davis  V.  State   (25  0.  S.  369),  207, 

212. 
Davis  V.  State  (63  0.  S.  173),  93. 
Davis  v.  State   (20  C.  C.  430,  10  C. 

D.  738),  197,286,  481. 
Dawson  v.  State   (5  O.  App.  130,  25 

C.  C.    [N.S.]   257,  27  C.  D.  52), 

215,  239. 
Dayton  v.  Hooglund   (39  O.  S.  671), 

473,  560. 
Dean  v.  King   (22  O.  S.  118),  535. 
Dean  v.  Yates  (22  0.  S.  388),  146. 
DeCamp    v.     Archibald     (50    O.     S. 

618),  165,  330J  379,  387. 
Degraw  v.  Lampert  (17  C.  C.  [N.S.] 

401),  132. 
DeHaven  v.   Coup    (6  A.  L.  R.  593, 

5  0.  D.  R.  562),  546. 
Delaware  v.  Construction  Co.   (21  C. 

C.  [N.S.]   137),  124. 
Delaware  Co.  v.  Andrews   (18  O.  S. 

49),  147. 
Delfs    V.    Yeager    (16   C.    C.    [N.S.] 

433),  161. 
Deming   v.    Trustees    (31    O.    S.   41, 

50),  522. 
DeMonte    v.    Rabst    (14    O.    D.    97), 

190. 
DeMuth  V.  State  (7  O.  App.  245,  27 

0.  C.  A.  585,  29  C.  D.  20),  17. 
Denison  University  v.  Manning  (Id- 
dings  75),  437. 
Dennis  v.  Landreth   (15  C.  C.  [N.S.] 

159,  22  C.  D.  678),  2. 


Dentoi?  V.   "\^Tiitney    (31   0.   S.  89), 

546,  560. 
Derush  v.  Brown  (8  Oh.  412),  281. 
DeSegond   v.    Culver    (10    Oh.    188), 

502. 
Deshler  v.  Sims  (2  N.  P.  [N.S.]  385, 

14  0.  D.  532),  438,  494. 
Despatch  Line  v.  Glenny    (41  O.   S. 

166,  177),  328. 
Detwiler  v.  Toledo   (6  C.  D.  297,  13 

C.  C.  572),  225. 
Detwiler  v.  Toledo   (6  C.  D.  300,  13 

C.  C.  579),  412. 

DeVeaux  v.   Clemens    (17   C.   C.  33, 

9  C.  D.  647),  102,  228,  230,  370. 
Devere  v.  State  (5  C.  C.  509,  3  C.  D. 

249),    164,    178,    197,    298,    458, 

461. 
Devereaux  v.  Thornton  (4  Bull.  355, 

4  0.  D.  R.  449),  323. 
Dew   V.    Reid    (52   0.    S.    519),   139, 

330. 
Dewey  v.  Sloan    (11  Bull.  102,  9  O. 

D.  R.  151),  10. 

Dewitt    V.    Greenfield    (5   Oh.    225), 

211. 
Dick  V.  Hyer   (94  O.  S.  351),  346. 
Dick  V.  Railroad  (38  O.  S.  389),  128, 

129. 
Dickey   v.    Beatty    (14   O.    S.   389), 

294. 
Dickey  v.  Greenleaf   (38  O.  S.  593), 

IGl,  306. 
Dickson  v.  Kilgour   (1  N.  P.   [N.S.] 

17,  14  0.  D.  59),  118. 
Dickson  v.  State   (39  O.  S.  73),  262, 

298,  337,  399. 
Diegle  v.  State  (14  C.  C.  [N.S.]  289, 

23  C.  D.  82),  285,  384. 
Diehl  V.  Stine   (ICC.  515,  1  C.  D. 

287),  457. 
Dietz  V.  Cincinnati   (25  C.  C.  [N.S.] 

506,  28  C.  D.  350),  199. 
Dilcher  v.  State  (39  0.  S.  130,  136), 

394. 


TABLE    OF    CASES 


XXXI 


[References  are   to   pages.] 


Dilcher  v.  State  (42  0.  S.  173),  193, 

•254,  2S1. 
Dille  V.  Lovell  (37  O.  S.  415),  64,  65. 
Dispatch  Co.  v.  Sturj^es  (7  C.  C.  [X. 

S.]  445,  18  C.  D.  65),  224. 
Dittrick  v.  Andrews   (7  O.  App.  363, 

28  0.  C.  A.  200,  29  C.  D.  73),  37. 
Dittrick  v.  Keliey   (20  N.  P.   [N.S.] 

86,  27  0.  D.  500),  499. 
Ditzler  v.  State  (2  C.  D.  702,  4  C.  C. 

551,  6),  283. 
Dixon   V.    Subdistrict    (3    C.    C.   517, 

2  C.  D.  298),  275,  497. 
Dock  Co.  V.  McCafferty  (5  C.  D.  262, 

11  C.  C.  457),  473. 
Dock  Co.  V.  Smith   (25  C.  C.   [N.S.I 

142),  557. 
Dock  Co.  V.  Trapnell   (23  C.  C.   [N. 

S.]  408),  259,  379,400, 
Dodd  V.  Groll  (19  C.  C,  718,  8  C.  D. 

334),  489,  504. 
Dodge   V.   Bank    (30   0.    S.    1),   205, 

259,  552. 
Dokes  V.  Soards   (8  O.  D.  E.  021,  9 

Bull.  76),  243. 
Donald   v.   State    (11   C.  D.   483,  21 

C.  C.  124),  67,  121,  229,  283,  287, 

288. 
Donaldson  v.   State    (5  C.  D.  98,   10 

C.  C.  613),  191. 
Doney  v.  Clark   (55  O.  S.  204),  366. 
Doolittle    V.    :\IcCullou';Ii     (7    O.    S. 

299),  297. 
Doren    v.   Flominjr    (6   C.   C.    [N.S.J 

81,  17  C.  D.  737),  129. 
Dougherty  v.  Schlotmari   (1  C.  S.  C. 

v..  292),  102,  2.33,  459. 
Dougliman    v.    Dougluiiati    (21   O.    S. 

658),  302. 
Douglas  V.   Downciid    (11    C.   C.    [N. 

S.]  390,  20  C.  1).  649),  295. 
Douglass   V.  Campbell    (2  C.   C.    [N. 

S.]   62,  14  C.  D.  241),  .522. 
Douglass   V.    Plotkin    (7    C.    D.    159, 

13  C.  C.  461),  149. 


Dragoo   v.   Whisner    (31   O.  S.  102), 

64. 
Dresback  v.    State    (38  O.    S.  365), 

375. 
Driggs   V.   State    (52  O.   S.   37),  18, 

503. 
Drott  V.  Riverside    (2   C.   D.   565,  4 

C.  C.  312),  497. 
Drucker  v.  Home  City  (12  C.  C.  [N. 

S.]  309,  21  C.  D.  466),  100. 
Drummond  v.  Henderson    (62  O.   S. 

136),  183. 
DuBois  V.  Schell  (94  0.  S.  93),  496. 
Duckwall    V.    Weaver    (2    Oh.    13), 

455,  466. 
Dudley   v.  Iron   Co.    (13   0.   S.    168, 

172),  292. 
Duhme  Co.  v.  Hazen   (6  C.  C.  [N.S.I 

606,  17  C.  D.  670),  299,  404,  440. 
Dukes   V.   Spangler    (35   0.   S.    119), 

204,  276. 
Duncan  v.  Kiger    (6  O.   App.  57,  27 

0.  C.  A.  422,  28  C.  D.  299),  322. 
Dunlap  V.  Doutjiet   (8  C.  D.  259,  15 

C.  C.  ir.l),  505. 
Dunlap    V.    Dunla|)    (89    0.    S.    28), 

432,  434. 
Dunn    V.    Cronise     (9    Oh.    82),    231, 

394. 
Dunn  V.  State  (45  0.  S.  249),  265. 
Durance   v.    State    (16  C.    C.    [X.S.] 

20,  27  C.  D.  287),  294,  372. 
Dutoit  V.  Doyle   (16  0.  S.  400),  15. 
Duttenliofcr  v.   State    (34  O.  S.   91, 

95),  345. 
Duval  V.  Davey  (32  O.  S.  604),  181, 

347. 
Duvall  v.  Fuhrman   (2  C.  D.   174,  3 

C.  C.  3051,  142,  178,  184. 
L'uvelmeyer  \.  Duvclnicycr   (5  N.  P. 

89,  7  0.  D.  420),  542. 
Dye    v.    Scott    (35    0.    S.    194),    114, 

531. 
Dyer  v.  Ishara    (4  C.  C.  429,  2  C.  D. 

633),  178. 
Dvkeman  v.  .Tuhnson   (!:3  O.  S.  126), 


XXXll 


TABLE    OF    CASES 


[References  are   to   pages.] 


E 


Earl  V.  Shoulder  (6  Oh.  409),  8. 
Easterday  v.  Kilborn   (Wright  345), 

342. 
Eastman    v.    Wight    (4    O.    S.    156, 

161),  503. 
Eaton  V.  Longworth    (10   O.  S.   20), 

469. 
Edgar  v.  Richardson   (33  O.   S.  581, 

592),  277,  518. 
Edwards  v.  Davis    (30  Bull.  283,  11 

0.  D.  R.  876),  103,  105,  135. 
Edwards  v.  Edwards  (24  O.  S.  402). 

2,  348. 
Edwards  v.  Owen  (15  Oh.  500),  198. 
Edwards  v.  Richards    (Wright  596), 

546. 
Edwards   Mfg.    Co.   v.    Perry    (4   O. 

App.   390,  22  C.   C.   [N.S.]    422, 

27  C.  D.  579),  82. 
Eflfinger  v.  State   (9  C.  C.  376,  6  C. 

D.  417),  97,  101. 
Efiinger  v.  State   (11  C.  C.  389,  5  C. 

D.  408),  326. 
Egle   V.    Morrison    (6   C.    C.    [KS.] 

609,  17  C.  T>.  497),  472. 
Eihlert  v.  Gommoll    (3  C.  C.   [N.S.] 

345,  13  C.  D.  586),  150,  189,  209. 
Eisenstadt   v.   Lucke    (25   C.   C.    [N. 

S.]  225),  172. 
Eldred   v.   Sexton    (5  Oh.  215),  499. 
Electric  Co.  v.  Deubler   (7  C.  C.  185, 

3  C.  D.  720),  290. 
Ellard  V.  Ferris  (91  O.  S.  3.39),  48. 
Ellen  V.  Thrasher    (16  C.  C.   [N.S.] 

469),  59. 
Elliott   V,    Platter    (43   O.    S.    198), 

508. 
Ellis  V.  Insurance  Co.  (4  O.  S.  628), 

127,  128. 
Ellis    V.    Twiggs    (17    C.    C.    [N.S.] 

172),  410. 
Elstner  v.  Fife   (32  0.  S.  358,  368), 

309. 


Elston  V.  Findlay  (24  O.  D.  465),  37. 
Ely  V.  Borck    (7   0.  App.  49,  27  O. 

C.  A.  398,  29  C.  D.  277),  141. 
Elyria    v.    Good     (17    C.    C.     [N.S.]- 

127),  199. 
Emery  v.  Bank  (25  0.  S.  360),  535. 
Emig  V.  Comrs.    (1  N.  P.  320,  3  0. 

D.  362),  110. 

Emison  v.  Railroad    (12  C.  D.  727), 

217,  224,  484. 
Emmitt  v.  Lee    (50  0.  S.  662),  492. 
Emrie  v.  Gilbert    (Wright  764),  452, 

532. 
Engineering   Co.   v.    Colechia    (18   C. 

C.  [N.S.J  316),  107. 
English    V.    Arnold    (35   Bull.    315), 

279. 
Ent  V.  Evans   (1  C.  S.  C.  R.  509,  13 

0.  D.  R.  690),  553. 
Erie  Co.  v.  Walker  (22  Bull.  106,  10 

O.  D.  R.  558),  272. 
Erwin  v.  Shaffer   (9  0.  S.  43),  32. 
Erwin  v.  State   (29  O.  S.   186,  191), 

207,  208. 
Esch  v.  Elyria  (7  C.  C.  [N.S.]  9,  17 

C.   D.   446),   19. 
Esley  V.  State  (10  C.  C.   [N.S.]   16fl, 

19  C.  r>.  .568),  176. 

Este  V.  Wilsliire   (44  0.  S.  636),  386. 
Euclid  V.  Bramley    (20  C.  C.   [N.S.] 

453),  19. 
Evans   v.  Lewis    (30  O.   S.    11),  205. 
Evans  v.  Reynolds  (32  O.  S.  163,5), 

18,  41,  79,  296. 
Evans  v.  State    (24  O.  S.  458),  370, 

518. 
Evans  v.  State,  6  N.  P.  129,  9  O.  D, 

222,  224),  24. 
Evans    v.   Vauglin    (2    O.    App.   421, 

20  C.    C.    [N.S.]    425,   26   C.    D. 
128),  418. 

Evans  v.  Wooster  (28  O.  C.  A.  285, 

30  C.  D.  250),  19. 
Evants  v.  Strode   (11  Oh.  480,  488), 

50. 


TABLE    OF    CASES 


XXXUl 


[References  are   to   pages.] 


Everett  v.  Waymire   (30  0.  S.  308), 

3. 
Ewalt  V.  Ames   (6  O.  App.  374,  29 

C.  D.  133,  27  O.  C.  A.  465,  475), 

345. 
Exporting     Co.     v.     Bank     (Wright 

249),  550. 
Express   Co.  v.  Backman    (28  O.   S. 

144),  61. 


Faber's  Estate  (5  0.  D.  575,  7  X.  P. 

561),  516. 
Fabian  v.  State   (97  0.  S.  184,  188). 

315,  377,  443. 
Fagan    v.    Welsh    (19   C.   C.    [N.R.] 

177,  180),  74,  104. 
Falardeau  v.  Smith  (13  C.  C.  [N.S.] 

268,  21  C.  D.  649),  458,  477. 
Fallis  V.  Griffith   (Wright  303),  455. 
Fanning  v.  Insurance  Co.    (37  O.  S. 

344),  55,  150. 
Farley  v.  Lisey   (55  0.  S.  627),  352, 

358. 
Farmer  v.  Cope  (37  Bull.  132),  528. 
Farr  v.  Bicker   (46  O.  S.  265),  531, 

541. 
Farrar  v.  State  (2  O.  S.  54,  56),  513, 

514,  515. 
Farrell  v.  State   (32  O.  S.  456,  461), 

211,  297. 
Farrer  v.  State  (2  O.  S.  54,  75),  155, 

175,  196. 
Farrington   v.    State    (10   Oh.   354), 

217. 
Fastbinder  v.  State   (42  O.  S.  341), 

90,  93,  129,  154. 
Fath  Co.  V.  Bausmerth  (15  C.  C.  [N. 

S.]   150,  23  C.  D.  .382),  10. 
Fatman   v.   Thompson    (2   Dis.   482, 

13  O.  D.  R.  295),  555,556. 
Feagles  v.  Tanner    (20  C.  C.  86,  11 

C.  D.   172),  83. 
Feagles  v.  Tanner   (20  C.  C.  94,  11 

C.  D.  176),  501. 


Feigley  v.  Whitaker  (22  0.  S.  606), 

275. 
Foltrup  V.  Schloomer  (13  C.  C.    [N. 

S.]  473,  23  C.  D.  467),  345. 
Fenger  v.  Fenger   (7  Bull.  304,  8  O. 

D.  R.  407),  155. 
Ferguson  v.   Gilbert    (16  0.   S.   88), 

52,  53,  76. 
Ferguson    v.    Powder    Co.    (6    C.    D. 

408,  9  C.  C.  445),  144. 
Fewster  v.  Goddard   (25  0.  S.  276), 

2,  53,  59,  65,  68. 
Fibre  Co.  v.  Steel  Co.  (22  C.  C.   [N. 

S.]  521),  525. 
Fiedeldey  v.  Reis   (12  Bull.  771,  9  O. 

D.  R.  296),  56. 
Field   Co.   v.   Cordage   Co.    (6   C.   C. 

615,  3  C.  D.  613),  286,  204. 
Fields  V.  State   (4  N.  P.   [N.S.]  401, 

17  0.  D.  16),  446. 

Findlay  Bros.  Co.  v.  Eiser   (17  C.  C. 

[N.S.]   406),  56. 
Finnegan  v.  Sullivan    (4  C.  D.   292, 

18  C.  C.  876),  236,  309,  399. 
Fire  Association  v.  Appel   (76  O.  S. 

1,  7),  60. 
Fisher   v.    Patterson    (14    Oh.    418), 

182. 
Fisher  v.  Tryon   (15  C.  C.  541,  8  C. 

D.  550,  564),  3,  7. 
Fitch  v.  Gottschalk   (6  C.  C.   [N.S.] 

239,  18  C.  D.  811),  531. 
Fitzpatrick  v.  Forsythe   (7  A.  L.  R. 

412,  6  O.  D.  R.  682),  495. 
Flanders   v.   Blandy    (45  O.   S.   108, 

113),  88. 
Fleming    v.    Donohoe    (5    Oh.    255), 

541. 
Flynn  v.  Wiltshire   (19  C.  C.  [N.S.] 

433),  139. 
Fogarty  v.  State  (9  O.  D.  477,  6  N. 

P.  248),  452. 
Folliard   v.   State    (14  C.   C.    [N.S.] 

205,  22  C.  T>.  481),  486,  491. 
Foote  v.  Railway   (21   C.  C.  319,  11 

C.  D.  685),  437. 


XXXIV 


TABLE    OF    CASES 


■   [References   are   to   pages.] 


Forbis  V.  Shattler  (2  C.  S.  C.  R.  95, 

13  O.  D.  R.  789),  472. 
Ford   V.   Obsorne    (45   0.   S.    1),   82, 

83,  501. 
Ford  V.  State   (11  C.  C.   [N.S.]   324, 

20  C.  D.  592),  296,  455. 
Fordyce   v.    Godman    (20    0.    S.    1), 

487. 
Foreman   v.   Railroad    (4  W.   L.   M. 

159,  2  0.  D.  R.  611),  387. 
Forrest  v.  State   (21  0.  S.  641),  236, 

264,  305. 
Forschner  v.   Mellick    (16   C.   C.    [X. 

'      S.]  309),  131. 
Fosdick  V.  Van  Horn    (40  0.  S.  459, 

467),  275,  454. 
Foster  v.  Dugan   (8  Oh.  87),  226. 
Foster  V.  Robinson  (6  0.  S.  90),  551, 

556. 
Foster  v.  State    (19  O.  S.  415,  418 i, 

23. 
Foster  v.  State  (1  C.  D.  261,  1  C.  C. 

467),  266. 
Fouts  V.    State    (7    0.    S.   471),  282, 

283,  287. 
Fouts  V.  State  (8  O.  S.  98,  108),  24S, 

250,  251,  252. 
Fowler  v.   Chichester    (26  O.   S.   9), 

189. 
Fowler  v.   Delaplain    (79   O.   S.   279, 

285),  417. 
Fox  V.  Jewell   (91  0.  S.  409),  116. 
Foxhever  v.  Red  Cross  (14  C.  D.  56, 

2  C.  C.  [N.S.]  394),  271,  355. 
Foy  V.  Railway    (6  C.  D.  396,  10  C. 

C.  151),  449. 

Frank  v.  Brewing   Co.    (5  O.  L.   R. 

559,  53  Bull.  37),  128,  426. 
Frank  v.  Traction  Co.    (7  K  P.   [N. 

S.]   143,  IS  0.  D.  791),  144. 
Franklin   v.  Baker    (48  O.    S.   296), 

41. 
Freeman  v.  Muth   (3  Bull.  914,  7  0. 

D.  R.  555),  545. 

Freeman  v.  Rawson  (5  0.  S.  1),  473, 
545. 


French  v.  Carkin  (30  C.  D.  68),  355, 

363. 
French  v.  Millard   (2  0.  S.  44),  115, 

119,  122,  391. 
Friednour  v.  Friednour  (8  N.  P.  509, 

9  0.  D.  466),  455. 
Frost  V.  Joimson  (8  Oh.  393),  241. 
Fugman  v.   Trostler    (24   C.   C.    [N, 

S.]   521),  54,  116. 
Fuher  V.  Vilhvock    (14  C.  C.  389,  6 

C.  D.  373),  147. 
Fuller  V.  Coats   (18  O.  S.  343),  291. 
Fuller  V.   State    (12  O.    S.  433),  28, 

90. 
Funk  V.  Amor  (2  C.  'D.  541,  4  C.  C. 

271),  183,  201. 
Funk  V.  Amor   (7  C.  C.  419,  2  C.  D. 

541),  194. 
Furnace    Co.   v.    Railway    (22    O.    S. 

451),  307,  472. 
Furrer   v.   Railway    (7   0.   App.   491, 

27  0.  C.  A.  410,  30  C.  D.  200), 

174,  496. 

G 

Gable  v.  Toledo   (9   C.  T>.  63,  16  C. 

C.   515),  201. 
Gager  v.  Prout  (48  O.  S.  89),  272. 
Gaines  v.  Trans.  &  Ins.   Co.    (28  O. 

S.  418),   61,   148. 
Galion  v.  Lauer   (.55  0.  S.  392),  177. 
Gandolfo   v.   State    (11    0.    S.    114), 

186,  299. 
Gano  V.  Fisk   (43  0.  S.  462,  73),  88. 
Garrett  v.  Hanshue    (53  O.  S.  482), 

10,   11,   12,  465,  466,  467. 
Garrison   v.    State    (4   N.   P.    [N.S.] 

277,  17  0.  D.  159),  268. 
Gartner  v.  Corwine    (57  O.   S.  246), 

148. 
Gas    &    Electric    Co.    v.    Archdeacon 

(80  O.   S.   27),  132. 
Gas  Co.  V.  Johnston    (76  0.  S.   119, 

123),   151. 
Gates  V.  Cleveland   (18  C.  C.  [N.S  ] 

349),  19. 


TABLE    OF    CASES 


XXXV 


[References  are   to   pages.] 


Gates  V.  Storage  Co.    (22  C.  C.  724, 

11  C.  D.  721),  278. 
Gawn  V.  State  (13  C.  C.  116,  7  C.  D. 

19),  168. 
Gay  V.  Gay  (26  O.  S.  402),  244,  270. 
Gaylord  v.  Case    (5  A.  L.  R.  494,  5 

0.  D.  R.  413),  491. 
Gazette   Co.   v.   Bishop    (7   Bull.   GO, 

6  0.  D.  R.  1113),  64. 
Gazette  Co.  v.  Grooms  (21  Bull.  292, 

10  0.  D.  R.  480),  303,348. 
Gee  V.  State   (60  0.  S.  485),  518. 
Geer  v.  State  (16  C.  C.  [KS.]  151), 

93. 
Geier  Co.  v.  Reliance  Co.   (14  K.  V. 

[KS.]  353,  26  O.  D.  329),  21. 
Geiger  v.  State   (70  O.  S.  400),  237, 

238. 
Geisse  v.  State  (85  0.  S.  457),  25. 
Gentile  v.  Railway   (6  O.  D.  Ill,  4 

N.  P.  9),  297. 
Gerlaugh  v.  Riley    (2  N.  P.    [N.S.] 

107,  14  0.  D.  557),  65. 
Gerwe    v.   Fireworks  Co.    (12   C.    C. 

420,  5  C.  D.  616),  134. 
Gibbons  v.  Day  Co.  (25  C.  C.  [N.S.] 

559,  28  C.  D.  359),  84. 
Gibbs  V.  Fulton  (2  Oh.  180),  505. 
Gibbs  V.  Girard   (88  0.  S.  34),  128. 
Gibson  v.  Farina  Co.  (2  Dis.  400,  13 

O.  D.  R.  306),  464. 
Gibson   v.   Xorwalk    (7   C.   D.   6,   13 

C.  C.  428),  101. 
Gilchrist  v.   Transportation  Co.    (21 

C.  C.  10,  11  C.  D.  350),  312,  458. 
Gill  V.  Pelkey  (54  O.  S.  348),  546. 
Gilligan  v.  Arcanum  (5  C.  C.  [N.S.] 

471,  16  C.  D.  42),  130. 
Gilliland  V.  Sellers  (2  O.  S.  223),  20. 
Gillmore  v.  Fitzgerald  (26  O.  S.  171), 

86,  456. 
Gilmore  v.  Cochran  (16  C.  C.  [N.S.I 

315),  82. 
Ginn    v.   Dolan    (81    0.    S.    121),   59, 
69,  70,  74. 


Gittings  V.  Bakor   (2  0.  S.  21),  12. 
Class  Co.   V.   Tillyer    (10   C.   D.   30G, 

19  C.  C.  635),  326. 
Gleason  v.  Williams    (Tappaii   174), 

392. 
Gobrecht  v.  Sicking  (9  C.  D.  851,  IS 

C.  C.  881),  270. 

Goins  V.   State    (46  O.   S.  457),  283, 

284,  513,  514. 
Golden  Rule   v.   Everding    (20   C.   C. 

6;-^9,  11   C.  D.   419),  33,  60,  140, 

143. 
Golner   v.    State    (19    C.    C.    [N.S.] 

317),  344. 
Golner  v.  State  (19  C.  C.  [N.S.]  571, 

26  C.  D.  654),  377. 
Gomien   v.   Weidemer    (27   O.   C.  A. 

177,  29  C.  D.  1 ) ,  136,  435. 
Goode,  In  re   (3  0.  L.  R.  401,  16  O. 

D.  404),  331. 

Goode  V.  Patterson    (40  O.   S.  345), 

235. 
Goodman,  In  re    (1  0.  D.  271,  7  N. 

P.  201),  332. 
Goodman  v.  Lynch   (17  C.  C.  [N.S.] 

31),  112. 
Goodrich  v.  Jenkins   (6  Oh.  43),  512. 
Goyert  v.  Eicher   (70  O.  S.  30),  9. 
Graf   V.   Wirthweine    (1    Handy    19, 

12  O.  D.  R.  4),  568. 
Graham  v.  Burggraf  (10  C.  C.  [N.S.] 

594,  12  C.  D.  747),  466,  502. 
Graham  v.  Davis  (4  O.  S.  362,  382), 

66,  78. 
Graham  v.  Insurance  Co.   (75  O.  S. 

374),  60. 
Grain   Co.   v.    Cincinnati    (14   C.   C. 

[N.S.]   85),   127. 
Grain    Co.    v.    DeFranco    (16    C.    C. 

[N.S.]    182),  62.- 
Grain    Co.    v.    Fronizer     (25    C.    C. 

[N.S.]    151),  82. 
Grand    Lodge    v.    Bunkers    (3   C.   C. 

IX.S.]    256,  13   C.  D.  487),  301, 

402. 


XXXVl 


TABLE    OF    CASES 


[References  are   to   pages.] 


Grant  v.  Railway    (10  C.  C.  362,  6 

C.  D.  516),  240. 
Gray  v.  State   (4  Oh,  353),  315. 
Green   v.   Railway    (5   C.   C.    [N.S.] 

497,  16  C.  D.  609),  293. 
Gregg   V.    Moore    (14    C.    C.    [N.S.] 

570,  23  C.  D.  534),  433. 
Greve    v.    Traction    Co.    (15    N.    P. 

[N.S.]  289),  121. 
Grever  v.  Taylor  (53  O.  S.  621),  405. 
Griffin  V.  Railway   (21  C.  C.  547,  11 

C.  D.  749),  149. 
Griffin  V.  State    (14  0.   S.  55),  185, 

186,   187,  196. 
Griffith   V.   State   (93  O.   S.  294,  6), 

507. 
Griffith    V.    Zipperwick     (28    O.    S. 

388),  239. 
Grillo  V.  State  (9  C.  C.  394,  6  C.  D. 

90,  92),  166,  167,  315. 
Groff  V.  Hertenstein  (12  C.  C.  [N.S.] 

515,  21  C.  D.  633),  205. 
Grossner  v.   State   (18   C.  C.    [N.S.] 

46),  19,  21. 
Grote  V.  Meyer   (9  A.  L.  R.  623,  6 

0.  D.  R.  1025),  540. 
Groves  V.  Groves  (6.')  O.  S.  442),  525, 
Grunkemeyer  v.  Railway    (19  C.  C. 
[N.S.i   366,    3    0.    App.    62,    25 

C.  D.  230),  43. 
Guckenberger   v.    Dexter    (5    N.    P. 

429,  8  0.  D.  530),  25. 
Gund  V.  Fixture  Co.  (14  C.  C.  [N.S.] 

493,  22  C.  D.  676),  302. 
Gunning  v.  Railway  (14  0.  D.  660), 

568. 
Gurley     v.    Armentraut     (6     C.     C. 
[N.S.]    156,   17   C.  D.   199),  158, 
205,  424. 
Gypsum  Co.  v.  Railway    (7  0.  App. 
145,  27  O.   C.  A.  481,  28  C.  D. 

315),  517. 


Haas  V.  Kundtz   (94  O.  S.  238,  246), 

114,  411,  413,  414. 
Haberty  v.  State  (8  C.  C.  262,  4  C. 

D.  462,  3),  238,  349. 
Hackman  v.  Cedar   (5  C.  D.  293,  13 

C.  C.  618),  66. 
Hadley  v.  Importing  Co.    (13  0.   S. 

502,  505),  550. 
Hadlow    V.    Beavis     (42    Bull.    256), 

529. 
Hafer,  In  re   (65  0.  S.  170),  332. 
Hafer,  In  re   (21  C.  C.  445,  12  C.  D. 

102),  368. 
Hafer   v.    Railroad    (29   Bull.   68,   4 

0.  D.  487,  492),  22. 
Hagerty    v.    Huddleston    (60    O.    S. 

149),   38,   494. 
Hall  V.  Aid   Assn.    (6  C.   C.   137,  3 

C.  D.  384),  60. 
Hall  V.  Geyer  (7  CD.  436,  14  C.  C. 

229),  278. 
Hall  V.  Hall  (78  0.  S.  415),  104. 
Hall  V.  Hall   (15  O.  D.  167,  2  O.  L. 

R.  328),  105,  136. 
Halleck  v.  State   (11  Oh.  400),  235, 

478,  481. 
Halstead  v.  Insurance  Co.   (14  N.  P. 

[N.S.]    113,  24  0.  D.  296),  462. 
Halterman   v.   Hansard    (4  O.   App. 

268,   22   C.   C.    [N.S.]    443),   34, 

73. 
Hamilton  v.  State  (34  O.  S.  82,  86), 

45,  176,  300,  382,  393. 
Hamilton  v.  Stone   (13  C.  C.   [N.S.] 

556,  23  C.  D.  471),  510. 
Hammel   v.   Insurance   Co.    (4   C.   C. 
[N.S.]    380,  14  C.  D.   101),  527. 
Hammond  v.  State  (78  O.  S.  15,  23), 

191,  282,  286,  456. 
Hanes  v.  Railroad  (40  O.  S.  95),  507. 
Hanley  v.  State   (12  C.  C.  584,  5  C. 

D.  488,  489),  41,  79. 
Hanna  v.   Crozier    (16   C.  C.    [N.S.] 
49),  418. 


TABLE    OF    CASES 


XXXVll 


[References  are   to   pages.] 


Hanoff  V.  State    (37   O.   S.  178,  9), 

377,  382. 
Hargraves   v.   Miller    (16   Oh.   338), 

100. 
Earlan     v.     Gunderson      (20     C.     C. 

[N.R.]    462,  3   0.    App.    141,  26 

C.  D.  441),  295,  506. 
Harley  v.  Weber  (1  C.  D.  300,  2  C. 

C.  ,57),  547. 
Harman  v.  Kelley  (14  Oh.  .502,  509), 

39. 
Harper  v.  Ualzell    (27  Bull.  274,  11 

O.  D.  R.  531),  144. 
Harrington  v.   State   (19  O.  S.  264, 

270),  126,  191,  192. 
Harris   v.    Carlisle    (7    Oh.    [Pt.    2] 

144),  53. 
Harris  v.  Coppock   (5  O.  L.  R.  267, 

18  O.  D.  266),  225,  559. 
Harris  v.  Insurance  Co.   (1  C.  S.  C. 

E.  .361,  13  0.  D.  R.  599),  567. 
Harris  v.  Oil  Co.  (57  O.  S.  118,  125), 

7. 
Harris  v.  Railway    (4  O.  App.   108, 

21  C.  C.   [N.S.]   209),)   412,  444. 
Harris  v.  State  (20  C.  C.  [N.S.]  356, 

24  C.  D.   187),  372. 
Harris  v.  Wallace  Co.   (84  O.  S.  104, 

108),   150. 
Harrison  v.   Castner    (11   O.    S.   339, 

346),  64,   178,  5.38. 
Harrison   v.   Neely    (41   O.   S.   334), 

363. 
Harrison   v.  Ohmer    (Iddings   132),) 

481. 
Harrison  v.   Spitz   (16  C.  C.    [X.S.] 

493),   147. 
Harrison   Co.  v.  Blacker    (15   N.  P. 

[N.R.]   377,  .383),  43. 
Hart  V.  Jolinson   (6  Oh.  87,  91),  298. 
Hart  V.  State  (20  Oh.  49,  .52),  454. 
Hartman  v.  Railway  (7  O.  App.  296, 

28  0.  C.   A.   119,  30  C.  D.   20), 

160,  179. 
Harvey  v.   Gardner    (41  O.  S.  642), 

30,  541,  542. 


Hastings  v.  Allen   (14  Oh.  58),  118. 
Hathaway  v.  Farley  (22  C.  C.  [N.S.] 

462),  409,  414,  4.33. 
Hathaway  v.  Gordon   (9  C.  C.   8,  6 

C.  D.  39),  6. 
Haughton  v.  The  Memphis  (S  W.  L. 

J.  562,  1  0.  D.  R.  403),  226. 
Hauser  v.   Assel    (21    C.   C.   789,   12 

C.  D.  3.36),  239. 
Hauser  v.  Curran   (8  O.  D.  495,  5  N. 

P.  224),  546. 
Hauser   v.   Metzger    (1    C.   S.   C.   R. 

104),  149. 
Haworth  v.  Gill   (30  O.  S.  627),  33. 
Hayes  v.  Smith   (62  O.  S.  101),  380, 

448. 
Hayes  v.  State  (14  C.  C.  [N.S.]  497, 

25  C.  D.  57),  194. 
Ilayman,   In   re    (20   C.    C.    667,    10 

C.  D.  815),  86. 
Hayner  v.   Cowden    (27   O.    S.   292), 

177. 
Haynes    v.  Haynes    (33   0.    S.   598>, 

103. 
Hays  V.  May  (Wright  80),  .531. 
Haywood  v.  Foster  (16  Oh.  88),  403. 
Hazen  v.  Morrison   (14  C.  C.   [N.S.] 

483,  23  C.  D.  512),  115. 
Hazen  v.  O'Connor   (8  C.  D.  87,  14 

C.  C.  529),  139. 
Hazzard    v.    Nottingham     (Tappan 

192),  505. 
Hazzard  v.  Wallace   (5  C.  C.   [X.S.J 

653,  17  C.  D.  147),  142,  140. 
Heaton    v.    Eldridge    (.")0   O.    S.    87), 

470. 
Heckler   v.    Transfer   Co.    (17   N.  P. 

[N.S.]  294,  25  O.  I).  171),  70. 
Hedrick   v.    firogg    (S    X.    p.    24,    10 

O.  D.  402),  277. 
Heeney   v.   Kilbane    (.".:i   O.   s.   4!)9), 

138,  519,  .520. 
IleflVon    Co.    V.    Coleman    (13    C.    C. 

[N.S]   47,  22  C.  J).  2:2),  294. 
lleinrichsdorf  v.    Sfon-^ol    (12   N.   P. 

[N.S.]  5.5,  22  0.  1).  007),  .516. 


XXXVlll 


TABLE    OF    CASES 


[References  are   to   pages.] 


Heintz  v.  Caldwell   (9  C.  D.  412,  16 

C.  C.  aSO),  211,  207,  395. 
Heiplej^  V.  Green   (7  O.  D.  497),  481. 
Heiselv.  Ileisel    (9   Bull.   110,  8  O. 

D.  R.  6r)3),  547. 

Heller  v.  Beal    (3  C.  C.   [N.S.]    268, 

13  C.  D.  540,  545),  240,  459. 
Heller    v.    Hawley    (8   C.    C.    [N.S.] 

265,  18  C.  D.  678),  81. 
Helman  v.  Railway   (58  0.  S.  400), 

279. 
Hendricks  v.  Fowler    (16  C.  C.  600, 

9  C.  D.  209),  178,  519,  520. 
Hendrickson  v.  Toledo  (13  C.  D.  256, 

3  C.  C.  [N.S.]  3.>5),  37. 
Hengst  V.  Cincinnati    (9  O.  D.   730, 

7  K  P.  1),  19. 
Henkel  v.  Stahl   (9  C.  D.  397,  18  C. 

C.  831),  46,  145,  169. 
Henkle   v.   McClure    (32  O.  S.  202), 

137,  171,  310. 
Henn  v.  Horn  (56  O.  S.  442),  210. 
Henning   v.   Bartz    (1    C.    C.    [N.S.] 

389,  15  C.  D.  15),  188. 
Heptasophs  v.  Fife  (16  C.  C.  [N.S.] 

205,  206),  301. 
Herig  v.   Harvey    (23   C.   C.    [N.S.] 

338),  469. 
Hermann   v.   Rolin    (8   0.   App.   303, 

28  0.   C.  A.  2S9,  30  C.  D.  203), 

235. 
Herrmann  v.  Bank  (16  N.  P.   [N.S.] 

47),  543. 
Hersliizer  v.  Florence  (39  O.  S.  516), 

406. 
Hess  V.  Cliitz    (8  O.  App.  57,  28  O. 

C.  A.  81,  29  C.  D.  497),  354. 
Hess  V.  State  (5  Oh.  5,  7),  154,  196, 

425. 
Hesse   V.  Railroad    (58   O.    S.    167), 

171. 
Hickman  v.  Insurance  Co.   (92  O.  S. 

87),  131. 
Hicks   V.   Cubbon    (2  A.   L.   R.    121, 
4  O.  D.  R.  408),  540. 


Hicks  V.  Hicks   (9  C.  C.   [N.vS.]  413, 

19  C.  IX  628),  49,  279. 
Hicks    V.    Person    (19    Oh.    426,   42), 

421. 
Hicr  V.  Rtites   (91  0.  S.  127),  429. 
Hilbrant  v.  Simmons    (18  C.  C.  123, 

9  C.  D.  56t)),  211. 
Hildebrand    v.    Fogle     (20    Oh.    147, 

158),  565. 
Hill  V.   Supervisors    (10  0.   S.   621), 

141,  147. 
Hillis  V.  Wylie   (26  O.   S.  574),  391. 
Hills  V.  Ludwig    (46  0.   S.  373),  67, 

147,  278,  311. 
Hilsinger  v.  Trickett   (K6  O.  S.  286), 

140,  141,  142,  147. 
Eiltabiddle  v.   State    (35   0.   S.   52), 

29,  62,  75,  9.'). 
Himrod   Co.    v.    Railroad    (22   0.    S. 

'^.51),  307,  472. 
Hinckley  v.  State  (IS  0.  D.  19,  4  O. 

L.  R.  408),  23. 
Ilinkle  V.    Sage    (67   O.    S.   256,  62), 

88. 
Hinz  V.   Ftate    (15   C.   C.    [KS.]    88, 

23   C.    D.    2?C.),   C2. 
Hirsch  V.  Cincinnati  (21  C.  C.  [N.S.] 

,561),  116,  187,  315,  342. 
Hirsch    v.   Hamilton    Co.    (12   O.    D. 

679),  532. 
Hixson    v.    Rabe    (IS    C.    C.    [N.S.] 

569),  411,  414. 
Hobson    v.    Insurance    Co.    (2   O.    D. 

<75,  2  N.  P.  2LT>),  40. 
Hodges  V.  Taft    (16  C.  C.   [N.S.]    1, 

25  C.  D.  27),  150. 
IToff  V.  Fisher  (26  O.  S.  7),  520. 
Hoffman   v.    Gordon    (15    O.    S.    211, 

2181,  55,  1,39,  142. 
Hoffmaster   v.    TArvk    (78    O.    S.    11, 

78. 
Hogg  V.  Zanesville  j\Ifg.  Co.  (Wright 

139),  2T3. 
Hohly   V.    Sl.coly    (21    C.   C.   484,   11 
•     C.   D.    678),  321. 


TABLE    OF    CASES 


XXXIX 


[References  are   to   pages.] 


Holland  Co.  v.  Juengling  (2  0.  App. 

20,  21  C.  C.  [N.S.]  593,  25  C.  D. 

398),  315,  416,  44S. 
Hollenbeck  v.  JIcMahon  (28  O.  S.  1), 

113,  131. 
Hollister   v.   Judges    (8   0.   S.    201), 

508. 
Hollister  v.   Reznor    (9   0.   S.   1,  8), 

280,  301,  340. 
Holman  v.  Riddle  (8  O.  S.  384),  514. 
Holtsberry  v.  Bounds  (9  C.  C.  [X.S.] 

510,  19  C.  D.  2.>7),  75. 
Holtz   V.    Dick    (42   O.    S.   23),   209, 

346,  388,  424. 
Holzworth    V.    Koch    (26   O.    S.    33). 

529,  540. 
Home    &    Dower    Assn.    v.    Kirk    (9 

Bull.  48,  8  0.  D.  R.  592),  544. 
Home   &  Dower  Assn.  v.  Reams    (7 

Bull.  8,  8  0.  D.  R.  272),  544. 
Hoop    Co.    V.    Railway     (20    N.    T. 

[N.S.J   520,  28  O.  D.   373),  135. 
Hoover  v.  Jennings    (11   0.   S.  624), 

365. 
Hoover  v.  State    (91   O.   S.   41,  46), 

163,  237,  395,  416. 
Hoover  Co.  v.  Extinguisher  Co.    (19 

C.  C.   [N.S.]    129),  559. 
Hoppe  V.  Parmalee   (11  C.  D.  24,  23 

C.  C.  303),  160,200,  310. 
Hornbeck  v.   State    (35  O.   S.   277), 

1,59,  265,  293. 
Horner  v.  State  (8  C.  C.  [N.S.]  4:i. 

18  C.  D    588),  21. 
Horning  v.  Poyer    (IS   C.   C.   732,   0 

C.  D.  370),  141,  478. 
Hosier  v.  Beard  (54  0.  S.  398,  407), 

56. 
Hossler  v.  Trump  (62  0.  S.  139,  145), 

126,  440. 
Hotel  Co.  V.  Brough  (26  C.  C.  [N.S.] 

185),  101. 
Hotelling  v.  State  (2  C.  D.  366,  3  C. 

C.  630),  2.J7,  318. 
Hott  V.  McDonough    (3  C.  C.  177,  2 

C.  D.  100),  539. 


Hough  V.  Henk  (S  C.  C.  354,  4  C.  D. 

69),  364,  476,  478. 
Houpt  V.  Houpt  (5  Oh.  539), 
Hovekamp  v.   p:ishoff    (4  O.  D.   171, 

3  N.  P.  158),  546. 
Howard  v.   Brower   (37   O.   S.  402), 

346. 
Howard  v.   Tiiomas    (12   0.   S.   201, 

205),)   522,  523,  526,  fi49. 
Howe  v.  Railway    (10  C.  D.  220,  18 

C.  C.  606),  145. 
Hoyt   v.   HcistiT    (2    Bull.    [Supp.] 

5,  7  0.  D.  R.  420,  425),  361. 
Hubbard  v.  Sandusky   (6  C.  D.  786, 

9  C.  C.  638),  86. 
Ilubbell   v.   Ebrite    (7   X.   P.  220,  8 

0.  D.  116),  453. 
Hubbell  V.  Hubbell    (22  O.   S.  208), 

352,  353,  354,  359. 
Hudson  v.  Yoiglit   (9  C.  D.  35,  15  C. 

C.  391),  151. 

Hudson  v.  Walcott    (39  O.  S.  618), 

531,  564. 
Phieston  v.   Hueston    (2    0.    S.  488, 

492),  272,  280,  281. 
Huff  V.  Austin   (46  0.  S.  386,  387), 

42. 
Hughes   V.  Lehan    (1   C.   C.    9,   1   C. 

D.  5),  131,  465,  495,  519. 
Huglies  V.  State  (9  C.  C.  [N.S.]  369, 

19  C.  D.  237),  68,  287,  370,  452. 
Ilulet  V.  Barnett    (10  Oh.  459,  401), 

513. 
Hull  V.  Hull    (9  C.  D.   19,  16  C.  C. 

688),  529,  .566. 
Hulse  V.  State   (35  0.  S.  421),  125. 
Hummel   v.    State    (17    O.   S.    628), 

117,  155,  300,  304,  307,  425. 
Humphrey,  In   re    (7   C.   D.   603,   14 

C.  C.  517),  368. 
Hunt  V.  Caldwell    (11    C.   D.  562,  22 

C.  C.  283),  397,  308. 

Hunt   V.   Daggett    (2   Bull.   22,  7   O. 

D.  R.  260),  298. 

Hunt  V.  State    (5  C.  C.   [N.S.]   621, 
17  C.  D.  16),  92. 


xl 


TABLE    OF    CASES 


[References  are   to   pages.] 


Huntington  v.  Eailway   (8  O.  L.  R. 

531),   581. 
Huntington  v.  Eogers   (9  O.  S.  511, 

517),   144. 
Hupp  V.  Boring    (8  C.  C.  259,  4  C. 

D.  560),  337,  338. 
Hurd    V.   Eobinson    (11   O.    S.   232), 

523,  558,  568. 
Hurley  v;   State    (46  O.   S.  320,  2), 

369,  370,  371,  372. 
Hutcheson  v.  McNutt  (1  Oh.  14,  25), 

241. 
Hutchins  v.  Wick   (1  C.  L.  R.  89,  4 

O.  D.  R.  170),  465. 
Hutchinson   v.   Bank    (3   0,    S.   490, 

493),  46,  245. 
Hutchinson  v.   State    (18  C.  D.  595, 

8    C.    C.    [N.S].    313,    23),    228, 

283,  285,  483. 
Hutson  V.  Hartley    (72  O.   S.   262), 

31,  43,  70,  104. 
Hyde  v.  Bank  (32  Bull.  217),  540. 


Ice  Co.  V.  Cinti.   (6  0.  App.  109,  28 

0.  C.  A.  511,  30  C.  D.  296),  86. 
Her   V.   Cromer    (Wright   441),   181, 

376. 
Illuminating  Co.  v.  Hitchens    (3  N. 

P.  [N.S.]  57,  15  0.  D.  522),  461. 
Ingersoll    v.    Herider    (12    Oh.    527), 

163,  179,  494. 
Inglebright    v.    Hammond     (19    Oh. 

337),  276,  308,  552. 
Ingraham  v.  Hart  (11  Oh.  255),  489. 
Inman  v.  Jenkins    (3  Oh.  271),  506. 
Insurance  Co.  v.  Applegate   (7  O.  S. 

292),  272. 
Insurance   Co.   v.   Barnes    (15   C.   C. 

[N.S.]  407,  25  C.  D.  380),  54. 
Insurance  Co.  v.  Hock   (8  C.  C.  341, 

4  C.   D.  553),  195. 
Insurance  Co.  v.  Bowersox    (6  C.  C. 

1,  3  C.  U.  321),  437,  453. 


Insurance    Co.    v.    Boyle    (21    O.    S. 

119),  ,545,  558. 
Insurance    Co.   v.   Burke    (19    C.    C. 

[N.S.]    289),   438. 
Insurance   Co.   v.    Carnahan    (10    C. 

D.    225,    19   C.   C.   97),   396. 
Insurance  Co.   v.  Cheever   (36  O.   S- 

201),  126,  137,  262,  272. 
Insurance  Co.  v.  Eshelman  (30  O.  S. 

647),  403. 
Insurance    Co.    v.    Fellows     (1    Dis. 

217,  12  0.  D.  R.  584),  527. 
Insurance   Co.   v.   Harmer    (2   O.   S. 

452),  403,  408,  409,  555. 
Insurance   Co.   v.  Hillard    (19   C.   C. 

[N.S.]    78,    2    O.    App.    223,    25 

C.  D.   131),   60. 

Insurance    Co.    v.    Hook    (62    O.    S. 

2.56),  527. 
Insurance    Co.   v.    Howie    (62    0.    S. 

204,  10),  89. 
Insurance   Co.    v.   Howie    (68   0.   S. 

614),  343. 
Insurance    Co.    v.   Hoyer    (66   O.    S. 

344),  548. 
Insurance  Co.  v.  Ice  Manufacturing 

Co.    (28  0.   C.  A.  273,  30  C.  D. 

167),  321. 
Insurance    Co.   v.   Insurance    Co.    (5 

O.  S.  450),  124. 
Insurance    Co.    v.    Jones    (35    O.    S. 

351),  78. 
Insurance    Co.    v.    Kelly    (24    O.    S. 

345),  2,  50,  57,  140,  296. 
Insurance   Co.   v.   LaBoiteaux    (5  O. 

D.  R.   242,   4   A.   L.   R.    1),   69, 
215,  430. 

Insurance  Co.  v.  Maguire    (19  C.  C. 

502,  10  C.  D.  562),  234. 
Insurance  Co.  v.  May   (20  Oh.  211), 

181,  202,  412. 
Insurance   Co.   v.   Morrow    (8   C.   D. 

419,   16  C.  C.  351),  373,  565. 
Insurance  Co.  v.  Packet  Co.  (7  O.  D. 

571,  6  N.  P.   173),  232. 


TABLE    OF    CASES 


xli 


[References   are   to   pages.] 


Insurance  Co.  v.  Paver  (16  Oh.  324), 

64,  100,  101. 
Insurance    Co.    v.    Romeis    (8    C.    D. 

633,  15  C.  C.  697),  68,  101,  113. 
Insurance    Co.    v.    Rosch    (3    C.    C. 

[N.S.]    156,   13   C.   D.   491),  44, 

101. 
Insurance  Co.  v.  Schmidt   (40  O    S. 

112),  293,  417. 
Insurance    Co.    v.    Sherwin-Williams 

Co.    (23  C.  C.    [N.S.]   390),  .',67. 
Insurance   Co.   v.   Shillito    (15   0.   S. 

559,  572)),  556. 
Insurance  Co.  v.  Shotts   (8  A.  L.  K. 

321,  6  O.  D.  R.  813),  541. 
Insurance    Co.    v.    Sickles    (2    C.    C. 

[N.S.]   222,  13  C.  D.  594),  89. 
Insurance   Co.    v.    Silberman    (24    C. 

C.  [N.S.]  511),  532. 
Insurance    Co.    v.    Titus    (82    O.    S. 

161),  60. 
Insurance    Co.    v.    Tobin    (32    0.    S. 

77,  90),  45,   170,   173,  271,  376, 

383,  415,  443. 
Insurance  Co.  v.  Tool  Co.    (96  O.  S. 

442),  85. 
Insurance   Co.   v.  Walrath    (9  C.  D. 

699,  17  C.  C.  509),  567. 
Insurance  Co.  v.  ^^^litman   (75  O.  S. 

312),  87. 
Insurance    Co.    v.    Wolf     (11    C.    D. 

815,  21  C.  C.  202),  550. 
Insurance  Co.  v.  Wright    (33   O.   S. 

533),   198,  393. 
Insurance  Co.  v.  Zimmer    (97  O.   S. 

14),  60. 
Institute  v.  Gibbons   (3  Bull.  581,  7 

O.  D.  R.  516),  501. 
Interstate  Co.  v.  Bird  (10  C.  D.  211, 

18  C.  C.  488),  60. 
Interurban    Co.    v.   Haines    (8   C.    C. 

[N.S.]   77,  18  C.  D.  443),  264. 
Interurban   Co.  v.  Haines    (12  C.   C 

[N.S.]    17,   21    C.    D.    265),   370, 

398. 


Iron  Co.   V.  Harper    (41   0.   S.    100), 

6. 
Iron  Co.  V.  Keynes    (56  O.  S.  501), 

561. 
Iron  Co.  V.  Street  (19  Oh.  300),  290. 
Iron  &  Steel  Co.  v.  Wiegand  (15  C. 

C.  [N.S.]  417,  24  C.  D.  556),  169. 
Irwin  V.  Scheuerer   (6  C.  D.  815,  10 

C.  C.  568),  517. 
Irwin   V.    Scheuerer    (10    C.   D.   827, 

19  C.  C.  650),  503. 
Ish  V.  Crane   (13  0.  S.  574),  10. 


Jacks  V.  Adamson    (56   0.   S.   397), 

86,  509. 
Jacob  V.  Canine   (7  0.  App.  268,  27 

0.  C.  A.  65,  28  C.  D.  110),  14.3. 
Jackson  v.  Ely  (57  O.  S.  450),  362, 

531. 
Jackson  v.  Foundry  &  Machine  Co. 

6  0.  App.   171,  27  0.  C.  A.  81, 

28  C.  D.  126),  511. 
Jackson  v.  State  (38  O.  S.  585),  197. 
Jackson  v.  State  (39  0.  S.  37),  252. 
Jackson   Co.   v.  Hathaway   (7   C.   C. 

[N.S.]    242,  17   C.  D.  745),   106. 
James    v.    Bostwick    (Wright    142), 

532. 
James  V.  Hotel  Co.   (6  O.  App.  162, 

28  0.  C.  A.  446,  30  C.  D.  259), 

511. 
Jane  Louisa  v.  Williams  (5  W.  L.  J. 

8,  1  0.  D.  R.  228),  458. 
Janes  v.  Hoehn    (3   C.   C.  433,  2  C. 

I).    245),   514. 
Jarmusch    v.     Steel     Co.     (3     C.    C. 

[N.S.]    1,  13  C.  D.  122),  1.50. 
Jarvis  v.  Jolinson   (2  0.  D.  R.  372,  2 

W.  L.  M.  389),  178. 
Jaspers   v.   MaUon    (11    Bull.    166,   t) 

O.  IX  R.   184),  11,5. 
.JcfTers    V.    State    (10    C.    D.   832,   20 

C.  C.  294),  94. 
Jenkins  v.  Railroad    (2  Dinney  49,  3 

(jiaz.   117),  123. 


xlii 


TABLE    OF    CASES 


[References   are   to   pages.] 


Jennings,  Ex  parte    (60  O.  S.  319), 

331,  386. 
Jennings  v.  Haynes    (1    C.   D.   13,    1 

C.  C.  22),  245,  26n,  310. 
Jessup  V.   Dennison    (2  Dis.   150,   13 

O.  D.  R.  93),  530. 
Jewelry  Co.  v.  Hazen  (6  C.  C.  [N.S.] 

606,  17  C.  D.  679),  299,  404,  440. 
Jolm  V.  Bridgman   (27  0.  S.  22),  42, 

164,  210,  229,  340,  404,  406. 
John  V.  Jolin  (Wright  584),  458. 
John  V.   State    (5  C.   C.    [N.S.]   200, 

16  C.  D.  723),  238. 
John  V.  State  (16  C.  C.  [N.S.]  316), 

228,  395,  483. 
Johnson  v.  Connable   (41  0.  S.  178), 

356. 
Johnson  v.  Corrington  (3  Bull.  1139, 

7  0.  D.  R.  572),  210. 
Johnson  V.  Dudley    (4  0.  D.  243,  3 

N.  P.  196),  33. 
Johnson    v.   Pierce    (16   0.    S.   472), 

521,  566. 
Johnson  v.   Spiegel    (4  C.   C.  388,  2 

C.  D.  612),  126,  440. 
Johnson  v.  Stedman   (3  Oh.  94),  451, 

499. 
Johnston  v.  Haines    (2  Oh.  55),  502. 
Jones   V.   Bank   Co.    (95   O.    S.   253), 

121,  124. 
Jones    V.    Columbus    (15   O.   D.   691, 

2  0.  L.  R.  402),  250,  253. 
Jones  V.  Goode   (7  C.  C.   [N.S.]  589, 

IS  C.  T).  475),  386. 
Jones   V.   Greaves    (26  O.   S.   2),   90, 

100,  101,  102. 
Jones  V.  Lloyd  (33  O.  S.  572),  5G1. 
Jones  V.   Pickle    (7   O.   App.   33,   27 

0.  C.  A.  413,  29  C.  D.  364),  82, 

434. 
Jones  V.  State    (51   0.   S.  331)),  34, 

91,  94,  190,  318. 
Jones  V.  State  (54  0.  S.  1),  172,  372, 

374. 
Jones  V.  State  (20  C.  C.  [N.S.]  542), 
233,  320. 


Jones   V.    Tiffimons    (21   O.    S.   596), 

526. 
Jones  Law  Petition,  In  re   (12  N.  P. 

[N.-S.]    449),  110. 
Judge    V.    Benefit    Assn.     (10    C.    C. 

[N.S.]    473,   20   C.   D.   133),   40, 

71,  74. 


Kahn  v.  Times  Star  (8  K  P.  616,  10 

0.  D.  599),  41,  182. 
Kammann  v.  Kammann   (6  0.  App. 

455,  26  C.  C.  [N.S.]  60,  29  C.  D. 

49),  136. 
Kandar    v.    Aetna    Co.     (10     C.     C. 

[N.S.]  449,  20  C.  D.  260),  60. 
Karb  v.   State    (54  0.  S.  383,  397), 

144. 
Katafiasz  v.  Electric  Co.    (14  C.  D. 

127,   1    C.   C.    [N.S.]    129),  240, 

372. 
Kathman  v.  Carlisle  Co.   (4  0.  L.  R. 

135,  16  O.  D.  765),  234. 
Kazer  v.  State   (5  Oh.  280),  518. 
K.  B.  Co.  V.  Dixon   (19  C.  C.   [N.S.] 

196),  5. 
Keck  V.  Cincinnati    (3   N.  P.   253,  4 

O.  D.  324),  20. 
Keck  V.  Jcnney  (1  Clev.  L.  R.  90,  4 

O.  D.  R.  173),  4. 
Keefe  v.   Evenden    (16   C.  C.    [X.S.] 

516,  25  C.  D.  68),  86. 
Keel  V.  Rudisell    (13  C.  C.  199,  7  C. 

D.  464),  70. 
Kceveny  v.  Ottman   (26  Bull.  65,  11 

0.  D.  R.  301),  67. 
Keiper  v.  Selfe  (22  C.  C.  [X.S.]  507), 

473. 
Kelch   V.    State    (55   O.    S.    146),   97, 

98,  100. 
Kelley  v.  Few  (18  Oh.  441),  551. 
Kelly  V.  Howell   (41  0.  S.  438),  135. 
Kelly  V.  Ingersoll    (1   C.   L.  R.   210, 

4  0.  D.  R.  284),  461. 
Kelly   V.   Wiseman    (2   Disney  418), 


TABLE    OF    CASES 


xliii 


[References  are   to   pages.] 


Kennedy   v.    Ankrim    (Tappan   40), 

482. 
Kennedy   v.   Dodge    (10    C.   D.    360, 

10  C.  C.  425),  364,  47r,,  476,  477, 

47n. 
Kent  V.  Bierce   (6  Oh.  336,  352),  20. 
Kent  V.  State    (42   0.   S.  426),  303, 

304,  380,  383,   515. 
Keplinger  v.  Slierrick  (Wright  103), 

189. 
Kerr  v.  Lydecker  (51  0.  S.  240,  247), 

IS. 
Kerr  v.  Paul  (37  Bull.  171),  525. 
Ketteman  v.  Metzger  (3  C.  C.  [X.S.] 

224,  13  C.  T).  61),  117,  326,  435. 
Keys  V.  Gore    (42  0.  S.  211),  355. 
Kezartee  v.  Cartmell  (31  O.  S.  522), 

508. 
Kilbourn    v.    Fury    (26    0.    S.    153), 

277,  456,  502. 
Kilbreath   v.   Bates    (38   0,   S.    187, 

195),  18. 
Kile  ]\Ifg.  Co.  V.  Peterson   (16  C.  C. 

[N.S.]  330),  449. 
Killits   V.   State    (19   C.   C.   740,    10 

C.  D.  722),  341,  368. 
King  V.  Barrett   (11  0.  S.  261),  344. 
King  V.  Herb   (9  C.  D.  797,  IS  C.  C. 

41),  133. 
King  V.  Kenny   (4  Oh.  79,  83),  485, 

494. 
King  V.  New  London  (8  N.  P.  [X.S.] 

34,  19  0.  D.  411),  518.    . 
King  V.  Wicks   (20  Oh.  87),  394. 
Kingsborough  v.  Tousley   (56  O.   S. 

450),  48,  512. 
Kinney  v.  Christy   (3  0.  L.  R.  385, 

16  O.  D.  795),  304. 
Kinsman    v.    Loomis     (11    Oh.    475, 

477),  39. 
Kirchner  v.  Smith    (7  C.   C.    [N.S.] 

22,  18  C.  D.  45),  147. 
Kirk  V.  Mo  wry   (24  0.  S.  581),  227. 
Kirk   V.    Stevenson    (59  0.    S.    556), 

108. 


Kirkbride    v.     Railway     (22     C.    C. 

[X.S.]   495,  501),  119. 
Kittredge    v.    Cincinnati     (6    C.    C. 

[N.S.]    646,   IS  C.   D.   100),  448. 
Kittredge    v.    Cincinnati     (2    N.    P. 

[X.S.]  6,  14  O.  D.  504),  409. 
Klaustermeyer  v.  Trust  Co.    (89  O. 

S.   142),  39. 
Klein   v.   Thompson    (19  0.   S.  569), 

208,  310. 
Kleyboltc   v.  BulTon    (89  O.   S.   61), 

201. 
Kling  V.  Bordner  (65  O.  S.  86),- 471. 
Klunk   V.   Railway    (74   O.    S.    125), 

70,  71,  74,   100. 
Knapp    V.    Harold    (1    C.    C.    [X.S.I 

469,  15  C.  D.  213),  19.3. 
Knauber  v.  Wunder  (6  A.  L.  R.  367, 

5  0.  D.  R.  516),  59. 
Kneipper  v.  Richards  (7  C.  C.  [X.S.] 

581,  16  C.  D.  245),  129,  300,  54!). 
Jolin  V.  John    (Wright  584),  458. 
Knight  V.  State   (54  0.  S.  365),  170, 

175,  20G,  291,  303. 
Knights  V.  Everding    (20  C.  C.   689, 

11   C.  D.  4191,  33,  60,   140,   143. 
Koch  V.  Meyers   (7  O.  App.  306,  29 

O.  C.  A.  142,  30  C.  D.  4.39),  136, 

154. 
Kohl  V.  Hannaford   (4  A.  L.  R.  372, 

5  0.  D.  R.  306),  133. 
Kohn  V.  State   (14  C.  C.   [X.S.]   31, 

23  C.  D.  417),  157,  291. 
Kohn  V.  State  (12  C.  C.   [X.S.]    197, 

22  C.  D.  711),  2.50,  404,  418. 
Kolling  V.  Bennett   (IS  C.  C.  425,  10 

C.  D.  81),  102. 
Koons  V.  State   (36  O.  S.  195),  410, 

424,  425,  426,  4.34,  4.-)8. 
Kornfcld     v.     Kornfeld     (10     C.     C. 

[X.S.]   400),  306. 
Korn/ield    v.     Horn  field     (22    C.     C. 

[X.S.]    363),  205. 
Kraig   v.    Hughes    (11    O.    1).    G62,   8 

X.  P.  G80),  542. 


xliv 


TABLE    OF    CASES 


[References   are   to   pages.] 


Kramer  v.  Blake    (18   C.   C.    [N.S.] 

77,  81),  447. 
Kratz    V.    Risch    (13    N.    P.    [N.S.] 

478),  561. 
Krause   v.    Morgan    (53   O.    S.    26), 

142,  270. 
Krebs   Co.  v.  Studor   (11   Bull.   190, 

9  0.  D.  R.   109),  506. 
Kroll  V.   Close    (82  O.   S.  190),   112. 
Kuester  v.  Yeoman  (14  C.  C.  [N.S.] 

264,  22  C.  D.  476),  178. 
Kugler   V.    Wiseman    (20    Oh.   361), 

439,  478,  481. 
Kuhl  V.  Reichert   (2  C.  C.  [N.S.]  42, 

15  C.  D.  693),  529. 
Kuhl  Co.  V.  Mack  (12  C.  D.  177,  17 

C.  C.  663),  212. 
Kuhn  V.  Miller  (Wright  127),  505. 
Kuhn   V.    Spice    Co.    (13   C.    C.   547, 

7  C.  D.  289),  242. 
Kuhn  V.  Spice  Co.   (8  N.  P.  686,  10 

O.  D.  292),  109. 
Kyser    v.    Cannon    (29    0.    S.    359), 

54,  58. 


Laidlaw    Co.    v.    Miller    (12    C.    C. 

[N.S.]  246,  21  C.  D.  .559),  449. 
Lamb  v.  Stewart   (2  Oh.  230),  394. 
Lambert  v.  Mustard  (18  0.  S.  419), 

508. 
Lambright  v.  State   (9  C.  C.  [N.S.] 

151,  19  C.  D.  93),  182. 
Lamping  v.  Cole    (5  W.   L.  M.   187, 

2  O.  D.  R.  737),  560. 
Lampreclit   v.   Crane    (5   O.   D.   753, 

4  Bull.  1107),  177. 
Lancken   v.   Piatt    (20  C.   C.   [N.S.] 

9),  82. 
Landman    v.    Sauerston    (24    C.    C. 

[N.S.]  478),  561. 
Langrueter  v.  Iroquois  Co.  (10  N.  P. 

[N.S.]   81,  20  O.  D.  292),  143. 
Lanman  v.   Piatt    (2  W.   L.   J.  426, 

1   O.  D.  R.   135),  518. 


Lapham   v.   Spink    (24  C.   C.    [N.S.] 

348),  269. 
Larimore  v.  Wells   (29  0.  S.  13),  32, 

81,  143,  279. 
LarAvell  v.  Hanover  Society    (40  O. 

S.  274),  489. 
Larwill  v.  Kirby    (14  Oh.   li.  189. 
Lasance,  In  re  (7  O.  D.  246,  5  N.  P, 

20),  456. 
Laudt  V.  Parchmann  (7  O.  App.  164, 

29  0.  C.  A.  63),  471. 
Laughlin  v.  State    (18  Oh.  99,  103), 

337. 
Lawrence     v.     McGregor      (Wright 

193),  .534,  558. 
Layman  v.  Brown   (12  O.  D.  R.  496, 

1  Dis.  75,  77),  3. 
Leach  v.  Calder  (12  0.  D.  211),  402. 
Lebanon    v.    Schwartz     (4    0.    App. 

173,  25  C.   C.   [N.S.]    273),   168, 

169,  3!)3. 
Lebanon  v.  Warren  Co.   (9  Oh.  80), 

277. 
LeBaron  v.  Skeels   (24  C.  C.   [N.S.] 

505),  84. 
Lee    V.    Benedict    (23    C.    C.    [N.S.] 

561),  473. 
Lee   V.    State    (21    0.    S.    151),   377, 

381. 
Leedle  v.  Christie   (15  C.   C.    [N.S.] 

385,  24^  C.  D.  572),  4,  53. 
Lefevre  v.  State  (50  0.  S.  584),  247, 

248,  249. 
Legg  V.   Drake    (1   0.   S.   286),  367, 

368,  374,  378,  379. 
Leggett  V.  State   (15  Oh.  283),  260. 
Leisy  v.  Zuellig   (7   C.  C.  423,  6  C. 

D.   175),  56,  70,  74. 
Lcmmon  v.  Hutch  ins   (1  C.  C.  388,  1 

C.  D.  217),  501. 
Leonard  v.  State,  ex  rel.   (3  0.  App. 

313,  20   C.   C.   [N.S.]    340),   110, 

363. 
Lewis    V.   Bank    (12    Oh.    132,    148), 

296. 
Lewis  V.  Gaylord  (1  W.  L.  J.  487,  1 

0.  D.  R.   73),  555. 


TABLE    OF    CASES 


xlv 


[References   are   to    pages.] 


Lewis  V.  State,  ex  rel.   (50  0.  S.  37), 

4!)4. 
Lewistown  Co.  v.  Stone  Co.    (92  O. 

5.  76),  122. 

Lieblang  v.  Railway  (4  C.  C.  [N.S.] 

olfi,  16  C.  D.  30),  2,  148. 
Lieblang  v.   State   (IS  C.  C.    [N.S.] 

173),  422. 
Liggitt  V.  Wing   (31  Bull.  85),  501. 
Light  &  Power  Co.  v.  Bell   (5  C.  C. 

[X.S.]  321,  16  C.  D.  691),  73. 
Liles  V.  Gaster  (42  O.  S.  631),  387. 
Lillie  V.  Bates   (3  C.  C.  94,  2  C.  D. 

54),  530. 
Lime  Co.  v.  Smith    (11  C.  C.  213,  5 

C.  D.  79),  275. 
Limerick  v.   State    (14  C.  C.  207,  7 

C.  D.  664),  156,  158,  267,  282. 
Lindsey   v.    State    (38    O.    S.    507), 

193,  197. 
Lindsey  v.  State  (69  0.  S.  215),  341. 
Lingafelter  v.  State   (8  C.  C.  [N.S.] 

537,  18  C.  D.  800),  206. 
Lippert  v.  Page  (13  C.  C.  [N.S.]  105, 

22  C.  D.  38),  291. 
List  &  Son  Co.   v.   Chase    (80  0.  S. 

42),  56. 
Lloyd    V.     Giddings     (Wright    694), 

503. 
Lockwood  V.  Wildman  (13  Oh.  430), 

225. 
Loeffner  v.  State   (10  0.  S.  598),  32, 

97,  98. 
Logan  V.  Gray   (Tappan  69),  500. 
Loney   v.   Hall    (8   O.   App.   154,   28 

6.  C.  A.   14,  29  C.  D.  453),  92, 
131. 

Long  V.  Moler  (5  0.  S.  271),  539. 
Long  V.  Mulford  (17  O.  S.  484,  503), 

8. 
Longworth  v.  Bank  (6  Oh.  .537),  562. 
Loomis  V.  Bank  (1  Disney  285),  273. 
Lore  V.  Truman   (10  O.  S.  45),  507. 
Loudenback  t-.  Collins   (4  O.  S.  251, 

259),  308. 


Lou<lenback   v.    Lowry    (4    C.   C.    C"), 

2  C.  D.  422),  65,  195. 
Lovell  V.  Wentworlh  (39  O.  S.  G14), 

151,   374. 
Lowe,  In  re  (3  X.  P.   [N.S.]  641,  10 

O.  D.  254),  385. 
Lowe    V.    Leliman     (15    0.    S.    179), 

292,  554,  555,  557. 
Lowther  v.  State   (2  C.  D.  685,  4  C. 

C.  522),  350. 
Lowther   v.   State    (IS  C.   C.   [N.S.] 

192),  91,  315. 
Ludlow  V.   Brewster    (2   C.  D.  47,  3 

C.  C.  82,  84),  25. 
Ludlow  V.  Johnston  (3  Oh.  553),  609. 
Ludlow  V.   Park    (4  Oh.  5,  44),  297. 
Lumber  Co.  v.  Heller  (84  0.  S.  201), 

523,  525. 
Lynch    v.    State     (12    C.    C.    [N.S.J 

330,  21  C.  D.  3.-)2),  215,  409. 
Lynch    v.    State    (5    O.   App.    16,   23 

C.  C.  [N.S.]  230,  27  C.  D.  1S9), 

350. 
Lyon  V.  Fels   (8  N.  P.  450,  H  O.  D. 

706),  562. 
Lyon   V.    Fleahman    (34   O.    S.   151  j, 

102. 
Lyon  V.  McCadden  (15  Oh.  551),  492. 
Lyon  V.  Phares    (4  0.  L.  R.  600,  17 

O.  D.  792),  108. 
Lyons  v.  Rink  Co.   (18  C.  C.   [N.S.] 

202),  270. 
Lytle  V.  Boyer  (33  O.  S.  506),  122. 
Lytle  V.  State  (31  O.  S.  196),  2l:J. 

Mc 

McAdams    v.    ^McAdams    (80    O.    S. 

232),  77,  83,  244. 
IMcAlTerty  v.  Conover    (7  O.  S.  99), 

559. 
McAllister    v.    Hartzdl     (60    O.     S. 

69),  123,  278. 
McArthur    v.    Plioebun    (2    Oli.    415, 

426),   121. 
McHcan    v.   Scars    (8    N.    P.    189,    11 
I  O.   1).  269),  453. 


slvi 


TABLE    OF    CASES 


[References   are    to   pages.] 


McCague   v.  Miller    (36   O.    S.   50',), 

347. 
McCarty  v.  Railway   (11   C.  D.  22'.), 

20  C.  C.  536,  545),  298. 
]\IcClelland  v.  Miller  (28  0.  S.  4SS), 

37. 
IMcClung  V.  Coke  Co.    (31  Bull.  0,  1 

O.  D.  247),  442. 
McComb  V.  Kittredge    (14  Oli.  348), 

548. 
McCombs  V.  State  (8  O.  S.  643),  1^3, 

265,  272. 
McCormick    v.     Dunker     (3     C.     C. 

[N.S.]  668,  14  C.  D.  553),  563. 
McCoy  V.  Galloway  (3  Oh.  282),  220. 
McCoy  V.  Jones   (61  0.  S.  119),  112. 
McCracken  v.  West  (17  Oh.  16),  216, 

244,  409,  410,  425. 
McCrea    v.    Sprinkler    Co.    (Iddings 

103),  479. 
McCune  v.  Larkin   (25  C.  C.    [N.S.] 

118,  26  C.  D.  357),  219. 
McCurdy    v.    Baughman     (43    O.    S. 

78),  512. 
McDermott  v.   State    (13   0.   S.  332, 

333),  170,  183,  184,  185. 
McDonald  v.  Miser   (2  C.  C.   [N.S.] 

313,   15   C.  D.  753),  70,  71,  72, 

74. 
McDonald    v.    Page     (Wright    121), 

532.      ■ 
McEwing    V.   James    (36   0.    S.    152, 

153),  4. 
McFarland  v.  Clark  (8  0.  App.  326, 

28  0.  C.  A.  217,  29  C.  D.  449), 

136,  297,  411. 
McFarland  v.  State   (24  0.  S.  329), 

265. 
McGee  v.  Organ  Co.  (2  C.  L.  R.  219, 

4  0.  D.  R.  481),  480. 
McGorray  v.  Sutter   (80  O.  S.  400), 

385. 
McGovern  v.  Knox    (21   O.   S.  547), 

544. 
McGovney  v.  State  (20  Oh.  93),  527. 


McGowan   v.   Mock    (26   Bull.   265), 

364,  477. 
McGuire   v.    State    (3    C.    C.   551,   2 

C.  D.  318),  44,  93,  112,  310. 
McHugh    V.    State    (42   O.   S.    154), 

290. 
Mclntyre   v.  Garlick    (4   C.   D.   429, 

8   C.  C.  416),   126,  440. 
McKee   v.    Hamilton    (33   O.   S.    7), 

273,  550. 
McKelvey    v.    McKelvey    (23    C.    D. 

117,   14  C.   C.   [N.S.]    331,  332), 

344. 
McKemy  v.  Goodall    (1   C.   C.  23,   1 

C.  D.  14),  479. 

IVIcKenzie  v.  Buchamann   (5  O.  App. 
270,  25  C.  C.    [N.S.]    529,  27  C. 

D.  303),  539,  548. 

McKinzic    v.    Steele    (18    0.    S.    38), 

232. 
McLaughlin  v.  Russell   (17  Oh.  475), 

16.5,  419,  452. 
McLaughlin  v.  State  (20  C.  C.  [N.S.] 

492),  142,  238,  253. 
McLean     v.     Cincinnati      (3     N.     P. 

[N.S.]    676,  16  0.  D.  4.19),  411, 

412. 
McManigal  v.  Brown  (45  0.  S.  499), 

531. 
McMyler  v.  Beckman  Co.    (17  C.  C. 

[N.S.]   32),  273. 
McNicol   V.   Johnson    (29  0.    S.   85), 

357,  366. 
McNutt  V.  Kauffman   (26  O.  S.  127, 

30),  57,  74,  75. 

M 

Machader    v.    Williams     (54    0.     S. 

344),  31G. 
Macklin  v.  Gas  Engine  Co.  (13  C.  C. 

[N.S.]   94,  22  C.  D.  16),  480. 
Maclaren  v.   Stone    (9  C.  D.  794,  18 

C.  C.  854),  76. 
Magruder  v.  McCandlis   (5  W.  L.  G. 

188,  3  O.  D.  R.  269),  564. 


TABLE    OF    CASES 


xlvii 


[References  are   to   pages.] 


Mahaflfr  v.  Rogers    (10  C.  C.   24,   0 

C.  b.  88),  506. 
Major,  In  re   (12  N.  P.    [X.S.]    161. 

56  Bull.  393),  332. 
Mallory    v.    Smith     (Tappan    108), 

390,  391. 
Malone   v.   Cincinnati    (3   Bull.   578, 

7  0.  D.  R.  51.S),  554,  562. 
Maloney  v.   ]\Ialoney    (4  C.   D.   255, 

12  C.  C.  700),  8. 
Maloney  v.  Sheriff    (98   0.   S.   4G.T), 

37. 
Mannix   v.   Purcell    (46   O.   S.   102), 

544. 
Manson  v.  State  (24  O.  S.  590),  302. 
Manufacturing  Co.  v.  Maitland    (92 

O.  S.  201,  205),  122,  173. 
Marks  v.   Fordyce    (2  A.  L.  R.  3C2, 

5  O.  D.  R.  81),  464,  513. 
Marks   v.   Sigler    (3   0.   S.  358),  45, 

237. 
Marshall  v.  Thomas  (12  C.  C.  [N.S.] 

353,  21  C.  D.  363),  410,  422,  423. 
Martin   v.    Bank    (11    C.    C.    [N.S.I 

93,  20  C.  D.  398),  530. 
]\Iartin   v.  Bond  Hill    (4  C.   D.   591, 

7   C.  C.  271),  275. 
Martin  v.  Elden  (32  O.  S.  282,  288), 

263,  307,  375,  378. 
Martin   v.    Scudder    (U  O.  D.  283), 

540. 
Martin  v.  State  (16  Oh.  364),  315. 
Martin  v.  State   (9  C.  D.  621,  17  C. 

C.  406),   190,  203,  222,  223,  310, 

311,  318. 
Marts  V.  State  (26  O.  S.  162),  188, 

393. 
Martz  V.  Railroad   (12  C.  C.   144,  5 

C.  D.  451),  174. 
Massa  v.  State   (3  C.  C.  9,  2  C.  D. 

6),  17. 
Masters  v.  Freeman   (17  O.  S.  323), 

292,  560. 
Mathews  v.  Leaman   (24  0.  S.  615), 

541. 


Mathews  v.  Mackey  (18  C.  C.  [X.^.] 

413),  353. 
Mathias   v.  Hazen    (11   C.  D.  54,  2  1 

C.  C.  287),  22.J. 

IVIatthews  v.  Heider  (22  O.  D.  399), 

365. 
jNIauk   V.   Brundage    (68   O.    S.    S9K 

299,  429. 
Maxwell  V.  Griftner    (11   C.  C.  210, 

5  C.  D.  323),  151. 
May  V.  State  (14  Oh.  461),  285,  425. 
Mayer  v.   Groves    (18   C.   C.    [N.S.] 

38),  86. 
Mead  v.  McGraw   (19  O.  S.  55,  62), 

113,  114,  373,  478. 
Meader  v.  Root    (11   C.   C.   81,  5   C. 

D.  61),  347. 

Mears   v.  Mears    (15   0.   S.   90),  72, 

103. 
Mechanics'  Assn.  v.  O'Conner   (29  O. 

5.  651),  3. 

Mecliling    v.    Buettger     (20    N.    P. 

[X.S.]  278,  28  O.  D.  178),  77. 
jMedill  V.  Fitzgerald  (8  C.  D.  129,  15 

C.  C.  415),  85,  540. 
Meek  v.   Penn.   Co.    (38  O.   S.   632), 

155,  496. 
Meeker   v.   Browning    (9   C.   D.    108, 

17  C.  C.  548),  307. 
Megrue   v.    Lennox    (59    0.    S.   479), 

144. 
jNIehmcrt    v.    Kelso    (6    O.    App.    09, 

26  C.  C.  [N.S.]  350),  201. 
Mehurin  v.  Stone   (37  O.  S.  49),  61, 

06,  141. 

]\Ieier  v.  Herancourt   (8  Bull.  29,  11 

A.   L.  R.  46,  6  0.  D.  R.   1164), 

305,  308,  352. 
Meiss  V.  Gill   (44  O.  S.  253),  507. 
IMendenhall   v.   Haven    (0  C.  D.  609, 

19  C.  C.  685),  131. 
Mengert  v.  Pub'g  Co.   (27  C.  D.  299, 

16  C.  C.  [X.S.]  34),  419. 
Mercer  Co.   v.  Deitsch   (94  0.  S.   1), 

112. 


xlviii 


TABLE    or   CASES 


[References  are  to   pages.] 
North   (10  0.  S.  251), 


Merchant   v 

510. 
Meriden  Co.  v.  Flory   (44  O.  S.  430, 

436),  20. 
Merrick  v.   Ditzler    (91   0.   S.   256), 

89. 
Methard  v.  State   (19  0.  S.  363),  44. 
Metzger  v.  Roberts    (5  C.  C.   [N.S.] 

344,  16  C.  D.  675),  546. 
Meyer  v.  Flannery  (18  N.  P.  [N.S.] 

361),   163. 
Middleton  v.  Westeny  (4  C.  D.  650, 

7  C.  C.  393),  145,  502,  517. 
Mihalovitch    v.    Bartlett    (12    C.    C. 

[N.S.]   160),  519. 
Miles  V.  Salisbury   (21  C.  C.  333,  12 

C.  D.  7),  201. 
Mii.  Co.  V.  Hazen   (20  C.  C.  287,  11 

CD.  54),  480,  555. 
Miller,  In  re   (8  N.  P.  142,  11  O.  D. 

69),  331. 
Miller  v.  Donahue    (11  C.  C.  [N.S.'] 

436,  21  C.  D.  38),  300. 
Miller  v.  Florer   (15  0.  S.  148,  152), 

549. 
Miller  v.  Gleason    (10   0.   D.   20,    18 

C.  C.  374),  312. 

Miller  v.   McLean    (11   C.  C.    [N.S.] 

489,  21  C.  D.  80),  88. 
Miller  v.  McLean   (21  C.  D.  64,  11  C. 

•  C.    [N.S.]    424),  67,  481. 
Miller    v.    Miller    (15    C.    C.    [N.S.] 

481,  24  C.  D.   43),  358. 
Miller  v.  Procter   (20  O.  S.  442),  50. 
Miller    v.    Sands     (23    C.    C.     [N.S.] 

483),  481. 
Miller  v.  Southworth   (10  C.  C.  572, 

5  C.  D.  101),  119. 
Miller  v.   State    (3  O.   S.  475,  484), 

487. 
Miller  v.  Stokely   (5  O.  S.  194),  84, 

542. 
Miller  v.   Sullivan    (26   O.    S.    639). 

523,  532. 
Miller  v.  Weber    (1   C.  C.  130,  1  C. 

D.  77),  318,  319,  436. 


Milling  Co.  v.  Biinn  (75  O.  S.  270), 

355,  363,  367. 
Mills  V.  Grasselli   (  4  O.  D.  R.  161, 

1  C.  L.  Rep.  82),  270. 
Mills-Carleton   Co.    v.    Huberty    (84 

O.  S.  81,  87),  16. 
Mimms  v.  State  (16  O.  S.  221),  124, 

166,  231,  284,  310,  336. 
Mining  Co.  v.   Jones  Co.    (15   C.  C. 

[N.S.]   369),  129,  130,  439. 
IMining    Co.    v.    Railroad    (10    Bull. 

42,  9  0.  D.  R.  15),  563. 
Minzey   v.    Marcy    (6   C.    C.    [N.S.] 

593,  15   C.  D.  593),  65,  75,  143, 

296,  379. 
Mitchell  V.  Ryan   (3  O.  S.  377),  30, 

83,  405,  538. 
Mitchell  V.  State  (21  C.  C.  24,  11  C. 

D.  446,  452),  340. 
Moehlman    v.    Ransohoff    (17   N.    P. 

[N.S.]   241,  26  0.  D.  541),  429. 
Mollenkopf   v.  Baumgardner    (21   C. 

C.  591,  11  C.  D.  655),  550. 
Monnett  v.   Monnett    (46   0.    S.   30, 

37),  473,  521,  549,  560. 
Monroe  v.  Peebles'  Sons  Co.    (13  0. 

C.    [N.S.]    174,   22    C.   D.   373), 

244. 
]\Ionroeville  v.  Weihl   (13  C.  C.  689, 

6  C.  D.  188),  394,  43L 
Monr9  V.  Pabst  (14  O.  D.  97),  235. 
Montgumery  v.   State    (11  Oh,  424), 

112,  222,  223. 
Montgomery  v.   Swindler    (32  O.   S. 

224),  63,  65. 
Moody   V.   Insurance   Co.    (52   O.   S. 

12),  60. 
Moody  V.  State    (17  O.   S.   110),  78, 

79,  80. 
Moon  V.   Middletown    (7   C.  D.  579, 

14  C.  C.  498,  502),  431. 
Moore   v.   Caldwell    (6   C.   C.    [N.S.] 

484,  17  C.  D.  449),  161,  282,  371, 

398,  432,  434,  435. 
Moore  v.   State    (2   O.   S.   500),   93, 

154,  166,  167,  170. 


TABLE    OF    CASES 


slix 


[References  are  to   pages.] 


Moore  v.  State  (17  O.  S.  521),  428. 
Moore  v.  Woodside  (26  O,  S.  537),  5. 
Moores    v.    Bricklayers'    Union    (23 

Bull.  48,  10  O.  D.  R.  605),  263. 
Moorman  v.  Fox   (9  0.  D.  638,  7  N. 

P.   45),    151. 
Moots  V.  State   (21  O.  S.  653),  483. 
Moran  v.  State    (11  C.  C.  464,  5  C. 

D.  234),  156,  101,  218,  231,  293, 

305. 
Moravec   v.   Buckley    (11  Bull.   225, 

9  0.  D.  R.  226),  469. 
Morehead  v.  State    (34  O.  S.  212), 

28,  236,  255. 
Morgan  v.  Bartlette   (3  C.  C.  431,  2 

C.  D.  244),  347. 
Morgan    v.    Boyer    (39   O.    S.    324), 

561. 
Morgan  v.  Burnet  (18  Oh.  535),  510. 
Morgan  v.  Lewis  (46  O.  S.  1,  9),  50. 
Morgan  v.  Nolte    (37  O.  S.  23,  26), 

187. 
Morgan  v.  State  (48  O.  S.  371),  91, 

93,  119,  125,  375,  378. 
Morison     v.     Cleveland     (17     C.     C. 

[N.S.]  427),  438. 
Morris  v.  Edwards   (1  Oh.  189),  22. 
Morris  v.  Faurot  (21  O.  S.  155),  66, 

68,  85,  309,  564. 
Morris  v.  Osborne   (27  0.  C.  A.  161, 

29  C.  D.  280),  48,  135. 
Morris  v.  State   (8  O.  App.  27),  198. 
Morrison  v.  State   (5  Oh.  438),  254, 

255. 
Morrow   v.   State    (15   C.   C.    [N.S.] 

501,  24  C.  D.  140),  233. 
Morton  v.  IMurray   (20  C.  C.  [N.S.] 

481),  .308. 
Mosher    V.    Butler    (31    0.    S.    188), 

350,  366. 
lilosicr  V.  Tarry  (60  O.  S.  388),  560, 

562. 
Moton  V.  Kessens  (00  O.  S.  609),  47. 
Motor  Vehicle  Co.  v.  Price  (23  C.  C. 

[N.S.]   403),  565. 


iloulders'   Union  v.   Greenwald   Co. 

(4  N.   P.    [N.S.]    161,  16  0.  D. 

678),  92,  202. 
Mulligan   v.  Railway    (8   C.   D.   722, 

16  C.  C.  0),316. 
Mumaw  v.  Insurance  Co.    (07  0.  S. 

1),   60. 
Mund  V.  Motz  (14  N.  P.  [X.S.]  230), 

200. 
Munday    v.    State    (5    C.    C.    [X.S.] 

656,  16  C.  D.  712),  34,  208. 
Murdock  v.  McXeely   (1  C.  D.  9,   1 

C.  C.  16),  305,  327,  366. 
Murphy  v.  Hagerman  (Wright  293), 

255,  425. 
Murphy  v.  State  (36  O.  S.  628),  238, 

255,  493. 
Murphy  v.  Swadner   (34  O.  S.  672), 

508. 
Jilurray   v.   State    (23   C.   C.    [N.S.] 

508),  91,  154,  513. 
Musser  v.  Adair   (55  O.  S.  46,  473>, 

38. 
Mustill  V.   Thornton   (22  C.  C.  60S, 

12  C.  D.  504),  371,  388. 
Myers  v.  Lucas   (16  C.  C.  545,  8  C. 

D.  431),  431. 

Myers  v.  Parker  (6  O.  S.  501),  527. 
Myers   v.    Standart    (11   O,    S.   29), 

269. 
Myers  v.  State   (46  O.  S.  473,  402), 

21. 
Myres  v.  Walker  (9  O.  S.  558),  360. 


N 

Xassr  V.  Upton    (4  O.  App.  202,  25 

C.  C.  [N.S.]  193),  102. 
National  Union  v.  Rothert  (39  Bull. 

143),  302. 
Nave   V.    Marshall    (9   O.   D.    415,   6 

N.  P.  488),  526. 
Navigation  Co.   v.   Eagle    (29   0.   S. 

238),  22,  157,  493. 
Nearing  v.  IL-iilway   (0  C.  D.  064,  9 

C,  C.  596),  503. 


TABLE    OF    CASES 


[References  are  to   pages.] 


Neff  V,   Cincinnati    (32   O.    S.   215), 

63,  64,  307. 
Negley  v.  Jeffers   (28  O.- S.  90),  539, 

548. 
Neifeld  V.  State  (3  C.  C.  [X.S.]  551, 

13  C.  D.  246),  312,  452. 
Neil  V.   Cherry    (3   W.  L.   M.   31,   2 

O.  D.  R.  417),  360. 
Neil  V.  Trustees   (31  0.  S.  15),  532. 
Neilsen  v.  Taylor    (16  C.  C.    [X.S.] 

124),  276. 
Neininger  v.   State    (50  O.    S.   394), 

528. 
Nelson  v.  Berea   (21  C.   C.  781,  12 

C.  D.  329),  19. 
Neville   v.   Hambo    (!'  Disney  517), 

358. 
Newberger  v.  Finney    (9  C.  D.  720, 

17  C.  C.  215),  468,  486. 
Newburg   v.   Munshower    (29   O.    S. 

617),  141. 
Newman  v.  Cinciniaati   (18  Oli.  323, 

334),  113,  131. 
Newton  v.   Taylor    (32  O.   S.   399), 

543. 
Nichols  V.  State   (8  O.  S.  435,  439), 

212. 
Nichols  V.   State    (1   W.   L.   J.   394, 

1  0.  D.  R.  55),  252. 
Nicholson  v.  Traction  Co.   (14  N.  P. 

[N.S.]    177,  23  0.  D.   151),  447. 
Nickels   V.   State    (22    C.    C.    [X.S.I 

236),  90,  95. 
Nicola  V.  Box  Co.    (13  O.  D.  753,   1 

N.  P.    [N.S.]    63),  532. 
Niemes   v.   Niemes    (97    O.    S.    14.5), 

124,  432,  433. 
Nienaber  v.  Tarvin   (9  0.  J).  501,  7 

N.  P.   110),  490. 
Nieswonger    v.    Insurance    Co.     (Id- 
dings  154),  22. 
Ni.xon  V.  Chatfield  (2  C.  S.  C.  R.  76, 

13  0.  D.  R.  778),  463. 
Nobil  V.   Railroad    (16  C.  C.   [N.S.] 

335),  119. 


Nolan  V.  Haberer  (3  O.  App.  45,  21 

C.   C.   [N.S.]    57,  26   C.   D.   59), 

357. 
Noland  v.  State    (19  Oh.  131),  117, 

334. 
Nolte   V.   Hill    (36   0.    S.   186),   148, 

554. 
Nolte  V.  Hill  (2  Bull.  86,  7  0.  D.  R. 

297),  312,  557. 
Norman  v.  Plumb   (12  C.  C.   [N.S.] 

483,  21  C.  D.  605),  479. 
Norman  v.  Will   (5  W.  L.  J.  508,  1 

O.  D.  R.  261),  244. 


O'Brien  v.  Cleveland  (1  C.  L.  R.  100, 

4  O.  D.  R.  189),  495. 
O'Brien  v.  Hospital  Association   (96 

0.  S.  1),  453. 
Oehler  v.  Walsh  (7  C.  C.  [N.S.]  572, 

18  C.  D.  446),  30. 
O'Harra  v.  Hunt    (19  Oh.  460),  328. 
Oil   Co.    V.   Innis    (12   C.    C.    [N.S.] 

223,  18  C.  D.  778),  9 
Oil  Co.  V.  Kclley   (6  C.  D.  470,  9  C. 

C.  511),  24. 
Oil   Co.   V.   ]\IcCrory    (14    C.   C.   304, 

7  C.  D.  344),  270,  417,  554,  555, 

557. 
Oldliam  V.  Broom   (28  0.  S.  41),  551. 
Olinger  v.  JIcGuffey .  (55  O.  S.  061), 

85,  564. 
Oliver,  In    re    (9   N.   P.    [N.S.]    178, 

20  0.  D.  64),  357. 
Oliver   v.   IMoore    (::3   O.   S.   473),  7, 

76. 
O'Meara  v.  State   (17  O.  S.  515),  29. 
Organ  Co.  v.  Biggs   (22  C.  C.  392,  12 

C.  D.  497),  r>?>,  C.">. 
Orlinkowski    v.    Glowik     (22    C.    C. 

[N.S.]   206),  448. 
Ormsbee  v.   Machir    (20  O.   S.  295), 

566. 
0"Rourke  v.  Rapp   (14  N.  P.  [N.S.] 

23,  24  O.  D.  528),  532. 


TABLE    OF    CASES 


li 


[References  are   to   pages.] 
Osborn  v.  McClelland   (43  0.  S.  284,   '.    Parmlee    v.    Adolph    (28    0.    S.    10), 


305),  81. 
Osseforth   v.  Traction   Co   (9  N.  P. 

[N.S.]   360,  20  O.  D.  285),  141. 
Ossman  v.  Schmitz   (4  C.  C.   [N.S.] 

502,  14  C.  D.  709),  63,  525. 
Ott  V.  Railway   (10  C.  D.  85,  18  C. 

C.  395),  490. 
Otte   V.   State    (19   C.   D.   203,  9   C. 

C.   [N.S.]  293,  306),  80. 
Ousley  V.  Witheron   (7  C.  D.  448,  13 

C.  C.  298),  103. 
Oviatt  V.  State   (19  0.  S.  573),  301. 


Packet    Co.    v.    Britton     (1     C.    C. 

[N.S.]    33,    15   C.   D.    153),   179. 
Packet  Co.  v.  Fogarty   (9  C.  C.  418, 

6  C.   D.   375),  493. 
Paddock  v.   Adams    (56  O.   S.  242), 

163,   356,   366,  542. 
Page  V.  Railroad   (4  W.  L.  M.  644, 

2  0.  D.  R.  716),  534. 

Page  V.   Zehring   (6  Bull.   299,  8  0. 

D.  R.   211),  364,  476,  478. 
Paint  Co.  v.  Bank    (9  C.  C.    [KS.l 

150,  19   C.  D.  485),  53. 
Paint    Co.    v.     Swihart     (16     C.    C. 

[N.S.]    16,   27    C.   D.   283),   160. 
Painter    v.    Painter     (IS    Dh.    247), 

528,  558. 
Palmer    v.    Cowie    (7    C.    C.    [N.S.] 

46,  17   C.  D.  OIT),  448. 
Tahror  v.  Ilumiston    (S7  0.  S.  401^ 

137,  557. 
Palmer  v.  Yarrington   (1  0.  S.  253), 

300,   301. 
I'appalardo     v.     Pappalardo     (6     O. 

App.   291,  28  0.    C.   A.   449,  30 

C.  D.   285),  500. 
Parker  v.  Blackwelder   (7  C.  C.  140, 

3  C.  D.  700),  515. 

Parker   v.   Dover    (18   N.   P.    [N.S.] 

465),   92,  341. 
Parker  v.   Miller    (9  Oh.    108),  520. 


123. 
Parsons   v.   Parsons    (52  O.   S.  470), 

538. 
Patterson  v.  Lamson   (45  O.  S.  77), 

526. 
Patterson   v.    State    (96   0.    S.   90), 

285,  304,  507,  508. 
Patterson   v.  State    (11  C.  D.   602), 

206. 
Patterson    v.    State     (2    W.    L.    M. 

333,  2  0.  D.  R.  304),  79. 
Patterson    v.    State    (Iddings    130), 

24. 
Patton  V.  State   (6  0.  S.  467),  282, 

283,   287. 
Paulin   V.   Sparrow    (91   0.   S.   279), 

512. 
Pavey  v.  Pavey   (30  O.  S.  600),  422. 
Pavey  v.  Vance   (56  0.  S.  162),  75. 
Peabody  v.  Kelly  Co.  (Iddings  159), 

566. 
Peat   V.    Norwalk    (5   C.    C.    [N.S.] 

614,  16  C.  D.  161),  107. 
Peck   V.    Beckwith    (10   0.    S.   497), 

548. 
Peck  V.  Osborn  (16  C.  C.  [X.S.]  592, 

27  C.  D.  626),  471. 
Pelton  V.  Bemis    (44  O.  S.  51,  58), 

150. 
Pelton  V.  Platner   (13  Oh.  209),  505. 
Peney  v.  Gilliland  (Wright  38),  520. 
Pen    Co.    V.    Juengling    (2    0.    App. 

20,  21   C.  C.    [N.S.]    593,  25   C. 

D.  398), '315,  416,  448. 
Penn.    Co.    v.    Files    (65   O.    S.   403), 

171,  266,  427,  428. 
Penn.  Co.  v.  Hickley   (11  C.  D.  379, 

20  C.  C.  668),  220. 
Penn.   Co.  v.  Loft  is    (72  O.   S.   288), 

549. 
Penn.  Co.  v.  IVlKann    (54  O.   S.    10), 

191. 
Penn.    Co.    v.    Muiioney     (22    C.    C. 

469,  12  C.  D.  366),  155,  162,  179, 

297,  312, 


lii 


TABLE    OF   CASES 


[References  are  to   pages.] 


Penn.  Co.  v.  Miller   (35  O.   S.  541), 

124. 
Penn.  Co.  v.  Rathgeb   (32  0.  S.  66), 

133,  134. 
Perm.  Co.  v.  Rossman  (13  C.  C.  Ill, 

7  C.  D.  119),  175. 
Penn.  Co.  v.   Trainer    (12  C.   C.  66, 

5  C.  D.  519),  173,  228,  395,  483. 
Penn.    Co.   v.    Yoder    (15    C.    D.    32, 

1   C.  C.    [N.S.]    283),  61,  150. 
Pennywit  v.   Foote    (27  O.   S.  600) ^ 

513.      . 
Penquite    v.     Lawrence     (11     O.    S. 

274),   119,   132. 
Pepper   v.    Sidwell    (36   0.    S.  454), 

145. 
Perkins  v.  Commissioners   (88  O.  S. 

495),  130. 
Perkins    v.    Mobley    (4   O.    S.    668), 

391. 
Perkins    v.    State    (3    C.    D.   292,   5 

C.  C.  597),  428. 

Perry  v.  Mfg.  Co.    (18  N.  P.   [N.S.] 

293,  26  0.  D.  301),   177. 
Perry  v.  Q-Neil   (78   0.  S.  200),  54, 

55,  76. 
Peters    v.    McWilliams     (36    O.    S. 

155),   12. 
Petition,  In   re    (7   O.  App.   222,  27 

0.  C.  A.  589,  28  C.  D,  347),  499. 
Pfirman,  In   re    (1   N.  P.   127,   1   O. 

D.  177),  368. 

Phelps  V.   Schroder    (26  O.   S.  549), 

76,  498. 
Phelps  V.  Smith  (22  O.  S.  189),  198. 
Phillips    V.    Elwell    (14   O.    S.    240), 

375,  520. 
Phillips   V.   Insurance   Co    (13    C.   C. 

679,  6  C.  D.  266),  380. 
Piano  Co.  v.  Edgar  (12  C.  C.  [N.S.] 

37,  21   C.  D.  295),  547. 
Piano    Co.    v.   Piano   Co.    (85   O.    S. 

196),  49. 


Piano    Co.    v.    Stewart     (25    C.    C. 

[N.S.]    270,   27    C.   D.   428),   13, 

133. 
Piatt  V.  Longworth   (27  O.  S.  159), 

148. 
Piatt  V.  St.  Clair   (6  Oh.  227),  506. 
Pierce  v.  Andrews   (7  C.  D..  105,  13 

C.  C.  513,  517),  116. 

Pierce  v.  White    (22  Bull.  98,  10  O. 

D.  R.  552),  13,  405. 

Pigman  v.  State  (14  Oh.  555),  213. 
Piqua  V.  Morris  (98  O.  S.  42),  122. 
Piscopo  V.  Railway  (19  C.  C.  [N.S.] 

298),  13. 
Piso  Co.  V.  Voight    (6  0.  D.  479,  4 

N.  P.  347),  24. 
Pitts  V.  Langdon   (2  O.  D.  481,  7  N. 

P.  304),  546. 
Place  V.  Taylor   (22  0.  S.  317),  38. 
Piatt  V.   Scribner    (18   C.   C.   452,  9 

C.  D.  771),  57,  149,  549. 
Plumb  V.  Robinson    (13  O.  S.  298), 

544. 
Pollock    V.    Cohen    (32   O.    S.    514), 

473,  547. 
Pollock  V.   Pollock    (2   C.   C.    143,   1 

C.  D.  410),  4. 
Poorman    v.    Crane    (Wright    347), 

505. 
Porter   v.   Wagner    (36  O.   S.   471), 

507. 
Post  V.   Kinney    (3  Bull.    118,   7  O. 

D.  R.  4.39),  564. 

Potter  V.  Myers  (31  O.  S.  103),  510. 
Potter  V.  Potter    (27  O.   S.  84),  82, 

84. 
Powell   V.   Benster    (58   0.    S.    735), 

234. 
Powell    V.    Powell     (78    O.    S.    331), 

3.52,  353,  355. 
Powell  V.  State   (84  0.  S.   165),  33, 

81. 
Powers     V.    Armstrong     (36    O.    S. 

357),  54,  149. 
Powers  V.  Boehme   (17  C.  C.  [N.S.] 

37),  125. 


TABLE    OF    CASES 


liii 


[References   are    to   pages.] 


Powers  V.  Railway    (33  0.   S.  429), 

216,  301,  312,  436. 
Powers  V.  Reed   (19  O.  S.   189),  498. 
Pratt  V.   State    Cl9  0.  S.  277),  168, 

392. 
Premack  v.   State    (11  C.   C.   [X.S.] 

364,  20   C.  D.    828),  91,    119. 
Prentice  v.  Toledo   (11  C.  C.   [N.S.] 

299,  20  C.  D.  568),  109. 
Prescott     V.     Albrecht     (21     C.     C. 

[N.S.]    198),  371. 
Prescott  V.  Koblitz  (25  C.  C.  [N.S.] 

84),  172. 
Preston  v.  Bowers  (13  O.  S.  1),  215, 

288,  293,  311. 
Price  V.   Coblitz    (21   C.   C.   732,  12 

C.  D.  34),  77,  293. 
Price  V.  Railroad    (13  N.  P.   [N.S.] 

65),  554. 
Price  V.  State    (18  O.  S.  418),  252. 
Printing    Co.    v.    Green     (52    O.    S. 

487),  509. 
Proctor  V.   Snodgrass    (5  C.  C.  547, 

3  C.  D.  268),  562,  565. 
Protective  Assn.  v.  Roebling   (18  N. 

P.    [N.S.]    385,   26   0.    D.   219), 

387. 
P^TOvision    Co.    v.    Blaha    (18    C.    C. 

[N.S.]   33),  121. 
Provision    Co.    v.   Hague    (20   C.   C. 

[N.S.]  34),  322. 
Provision    Co.    v.    Limmermaier    (4 

C.  D.  240,  8  C.  C.  701),  168,  311. 
Publishing   Co.   v.    Maloney    (50    O. 

S.  71,  79),  189. 
Publishing    Co.    v.    Valentine    (9    C. 

C.   387,  6   C.   D.  323),  6,   189. 
Pugh  V.  Holliday  (3  0.  S.  284),  245. 
Pugh    Printing    Co.    v.    Supervisors 

(22  C.  C.  584,  12  C.  D.  477),  37. 
Pullan   V.   Cocliran    (6   Bull.   390,   6 

0.  D.  R.  1070),  556,  557. 
Pullman    Co.    v.    Willett     (7    C.    C. 

[X.S.]    173,   17  C.  D.  649),  218, 

269,  452. 


Putnam    Co.    v.    Auditor    (1    0.    S. 
322),  8. 


Quarry    Co.    v.    Clements    (38    0.    S. 
587),  554,   560. 


R 


Raab's  Estate,  In  re   (16  0.  S.  273), 

357. 
Radcliffe  v.  Radcliffe    (15  C.  C.  284, 

8  C.  D.   278),   146. 
Rader  v.  Basch  (18  C.  C.  [N.S.]  23), 

2. 
Ragan  v.  Sherman,  17  C.  C.    [N.S.] 

523,  24  C.  D.  214),  77. 
Rahe,   In   re    (12    0.    D.    590),    215, 

359,   403. 
Railway  Co.   v.  Ackworth    (6  C.  D. 

622,  10  C.  C.  583),  106. 
Railroad  v.  Anderson   (21  C.  C.  288, 

11  C.  D.  765),  200. 
Railway  v.  Andrews   (58  0.  S.  426), 

134. 
Railroad   v.   Bailey    (11   O.   S.   333), 

412,  415,  444. 
Railroad  v.  Ball   (5  O.  S.  568),  436. 
Railway  v.  Ball  (5  C.  C.  [N.S.]  321, 

16  C.  D.  691),  414,  429. 
Railway  v.   Bateman    (16  C.  C.   162, 

8  C.  D.   220),   140. 
Railway  v.  Beall  (6  C.  D.  250,  13  C. 

C.   605),  200. 
Railway  v.  Board   (11  C.  D.  406,  20 

C.  b.  681),  168. 
Railway  v.  Beckwith   (12  C.  D.  559), 

121,  431. 
Railway    v.    Bixl.T    (12    C.    D.    653), 

122. 
Railroad    v.    Boh-ii     (76    O.    S.    376), 

317,  323,  338. 
Railway   v.   Boltz    (16   C.   C.    [N.S.] 

383),  378,  394,  447. 


liv 


TABLE    OF    CASES 


[References  are  to   pages.] 


Railway  v.  Boswell   (7  C.  C.  [N.S.] 

413,  18  C.  D.  694),  146. 
Eaihvay  v.  Botefuhr    (20  C.  D.   67, 

10   C.   C.    [N.S.]    281),   179. 
Eailroad   v.    Brown    (26    0.    S.   223, 

233),  5C3. 
Railroad    v.    Burkham     (7    0.    App. 

434,  27  O.   C.   A.  366,  29  C.  D. 

176),  117. 
Railroad    v.    Burr    (82    0.    S.    129), 

241. 
Railway  v.  Burroughs   (6  O.  D.  527, 

5  N.  P.   12),  115. 
Railway  v.   Butler    (3   C.   C.    [KS.] 

449,  13  C.  D.  459),  240. 
Railroad  v.  Campbell   (4  0.  S.  583), 

436. 
Railroad  v.  Campbell  (36  O.  S.  647), 

271. 
Railroad   v.   Cavagna    (0   C.   C.  600, 

3  C.  D.  60S),  120. 
Railroad     v.     Cincinnati     (16     Bull. 

367,  9  0.  D.  R.  605),  562. 
Railroad    v.    Cleveland     (15    C.    C. 

[N.S.]  193,  23  C.  D.  482),  8; 
Railway  v.  Cobb  (35  0.  S.  94),  219. 
Railway  v.  Collins   (10  C.  C.   [N.S.] 

486,  20  C.  D.  110),  271. 
Railroad  v.  Commissioners  (63  O.  S. 

23),  318. 
Railway  v.   Conner    (6   C.  C.    [N.S.] 

301,  17  C.  D.  229),  29,  445. 
Itailway     v.     Cornwall     (14     C.     C. 

[X.S.]    209,   24   C.   D.    124),   73, 

106. 
Railroad  v.  Crawford  (24  0.  S.  631), 

48,   105,    123,   133,  134. 
Railroad   v.   Criss    (7    C.   D.   632,   15 

C.  C.   398),   310. 
Railway    v.    Cronin    (38    0.    S.    122, 

125),   459. 
Railroad    v.    Cunnington    (39    0.    S. 

'327),    246. 
Railroad  v.  Davider  (17  C.  C.  [N.S.] 

470),  146. 


Railroad  v.  Defiance  (52  O.  S.  262), 

409. 
Railway  v.  DeOnzo    (87   O.  S.   109), 

321,  322. 
Railroad  v.   Dodds    (1    C.    S.   C.    R. 

47,  13  0.  D.  R.  407),  535. 
Railway  v.  Dooley   (13  C.  C.  [N.S.] 

225,  22  C.  D.  655),  118,  200. 
Railway  Co.  v.   Ellis    (6  C.  D.  304, 

13  C.  C.  704),  1.19,  173,  3^8. 
Railway    v.    Everett    (8    C.    D.    210, 

15   C.   C.   181),  412. 
Railway  v.   Everett    (10   C.   D.  493, 

19    C.    C=    205),    125,    414,    415, 

439. 
Railroad  v.  Fieback   (87  O.  S.  254), 

42. 
Railway  v.  Fleming   (30  O.  S.  480), 

123,   133. 
Railroad  v.  Fredenbur    (2  C.  D.   15, 

3  C.  C.  2:),  175. 
Raihvr.y  Co.  v.  Frye   (SO  0.  S.  289), 

100. 
Railway   v.   Gaffney    (65  O.   S.   104, 

US),  1D9. 
Railway  v.   Gaffney    (9   C.   C.  32,  6 

C.  D.  94,  7),  173,  174,  316,  430. 
Railroad  v.  Gardner    (45  0.  S.  309), 

436. 
Railway  v.  Gatens   (18  C.  C.  [X.S.] 

173),  427,  430. 
Railroad  v.  Gibson    (41  O.   S.   145), 

147. 
Railroad  v.  Gilbert   (14  C.  D.  181,  2 

C.  C.   [N.S.]   432),  306. 
Railway  v.  Godwin    (12  C.  D.  537), 

168,   169,   309,   431. 
Railroad  v.  Gorsuch  (8  C.  C.  [N.S.] 

297,  18  C.  D.  468),  309,  438. 
Railway  v.   Gulla    (15   C.  C.    [N.S.] 

540,  24  C.   T>.   101),  29. 
Railway  v.  Hall    (16  0.  D.  62,  3  0. 

L.   R.   364),  371. 
Railway  v.   Hamilton    (3   C.   C.  455, 

2   C.   D.   259),   109. 


TABLE    OF    CASES 


Iv 


[References  are  to   pages.] 
Railway   Co.  v.  Hart    (6  C.  D.  731,       Railway   v.   Lott    (6  C.   D.   447,    10 


10  C.  C.  411),  75,  106. 
Railroad   v.   Hatch    (6   C.   C.   230,  3 

C.  D.   430),  24. 
Railway  v.  Helber  (HI  0.  S.  231),  7. 
Railway  v.   Herrick    (49   0.   S.   25), 

218,  200,  2G2,  298. 
Railway  v.  Hobart   (13  C.  C.  [N.S.] 

592,    22    C.    D.    154),    143,   322, 

412,  427. 
Railroad  v.  Hoffliines  (46  O.  S.  643), 

14,  16,  22. 
Railway  v.   Hudson    (22   C.   C.  586, 

12  C.  D.  GOD,  10,  296,  323,  324. 
Railway  v.  Hunter  (10  C.  C.   [N.S.] 

504,  12  C.  D.  769),  295,  447. 


C.  C.  249),  440. 
Railroad  Co.  v.  McClellan   (69  O.  S. 

142),  73. 
Railway  v.  McKelvey   (5  C.  D.  561, 

12  C.  C.  426),  151,  1.59,  315. 
Railway  v.  McLean   (1  C.  C.  112,  1 

C.  D.  67,  69),  270. 
Railroad  v.  Mc^Millan  (37  O.  S.  554), 

134. 
Eailroad   Co.    v.   Mackey    (53   0.   S. 

370,  383),  29. 
Eailway    v.    Mara    (26   O.    S.    18.'), 

264. 
Railroad   v.   Marsh    (63   O.    S.   236), 

134,  216,  407,  434. 


Railway  v..  Isaacs   (10  C.  D.  49,  18   j    Railway  v.  Mendenh,'.!    (7   0.  App. 


C.  C.  177),  236. 
Railway  v.  James    (18  C.  C.   [N.S.] 

210,  1  0.  App.  335),  174. 
Railway   v.   Janeski    (4    C.   D.    218, 

12  C.  C.  685),  122,  138. 
Railway  v.   Kelley    (6  C.   C.   155,  3 

C.  D.  393),  303. 
Railroad  v.  Kelly   (10   C.   C.   322,  6 

C.  D.  555),  174. 
Railway  v.  Kiner  (2  O.  App.  82,  17 
C.  C.  [N.S.]  431,  25  C.  D.  175), 

410. 
Railroad  v.  Kistler   (66  0.  S.  326), 

138,  139. 
Railway   v.   Klute    (8    C.   C.    [N.S.] 

409,  19  C.  D.  702),  201. 
Railway  v.  LaTourette  (2  C.  C-  279, 

1  C.  D.  486),  534. 
Eailway    v.    Levy    (8    C.   C.    [N.S.] 

353,  18  C.  D.  23),  106. 
Railway  Co.  v.  Linn  (77  O.  S.  615), 

100. 


356,  27  0.  C.  A.  376),  133. 
Railway  v.   Mills    (16   C.   C.    [N.S.] 

62),  143. 
Railway   v.    Moore    (33    O.    S.    384, 

391),  18. 
Railway  v.  Moreland  (12  C.  D.  612), 

125,  370,  445,  449. 
Railroad   v.   Morey    (47  O.   S.   207), 

418,  454. 
Railroad  v.  MoAvery  (36  0.  S.  418), 

73. 
Railway  v.  Mulcahy   (9  C.  D.  82,  16 

C.  C.  204),  444. 
Railway  v.  Murphy   (50  0.  S.  135), 

135. 
Railroad   v.    Nobil    (85   0.    S.    175), 

112. 
Railroad    v.    Nolthenius     (40    0.    S. 

376),  450. 
Railroad  v.  Parker    (9  C.  C.   [N.S.] 

28,   19   C.   D.    1),   173,   177,   246, 

260,  323. 


Railway  v.  Litz   (6  C.  1).  285,  18  C.       Railroad   v.  Terkins    (22  C.   C.   630, 


C.  646),  310. 
Railroad    v.     Lockwood     (72    O.    S. 
586),   121,  138. 


12  C.  n.  676),  323. 
Railroad  v.  Pfau    (9  Bull.  200,  8  O. 
D.   R.   691),  496. 


Railway    v.    Longworth     (30    O.    S.  ,    Railroad  v.  Picksley   (24  O.  S.  654), 


108),  323. 


123,  135. 


Ivi 


TABLE    OF    CASES 


[References  are  to   pages.] 


Railway  v.   Pifer    (20   C.   C.    [N.S.] 

435),  117. 
Railroad  v.  Pontius   (19  O.  S.  221), 

534. 
Railway  v.  Powell   (22  C.  C.   [N.S.] 

305),   105,  124. 
Railroad  v.  Pritschau  (69  O.  S.  438), 

306. 
Railway  v.  Pritz  (90  O.  S.  419),  110. 
Railway   v.   Public   Utilities   Com'n. 

(02  0.  S.  9),  110. 
Railroad   v.   Railroad    (5    C.   D.  643, 

12  C.  C.  367),  462,  495. 
Railway  v.   Railway    (3   C.   D.   493, 

6  C.  C.  362),  469. 
Railway   v.    Rawson    (16    Bull.   423, 

9  0.  D.  R.  709),  452. 
Railway  v.  Raid   (4  N.  P.  127,  6  0. 

D.  273),  502. 
Railway  v.  Reynolds    (21  C.  C.  402, 

11  C.  D.  701),  177,  290. 
Railway  v.  Riclierson   (19  C.  C.  385, 

10  C.  D.  326),  120. 

Railway   v.   Rigby    (69    0.   S.   184), 

118. 
Railway    v.   Roebuck    (22  C.   C.   99, 

12  C.  D.  262),  267. 

Railway  v.  Rohner   (6  C.  D.  706,  9 

C.  C.  702),  120. 
Railway  v.  Roos   (9  C.  C.  201,  6  C. 

D.  33),  71,  74,  381. 
Railway  v.  Salt  Co.   (9  C.  C.   [N.S.] 

114,  19  C.  D.  110),  317. 
Railroad   v.    Schade    (15   C.    C.   424, 

8  C.  D.  316),  120. 
Railway   v.   Scliultz    (43   0.    S.   270, 

281,    283),    402,    406,    407,    411, 

418. 
Railway  v.  Seefred  (19  C.  C.  [N.S.] 

262),   140. 
Railroad  v.  Slieppard   (56  O.  S.  68), 

226,  446. 
Raihvay  v.  Shook   (9  C.  D.  9,  16  C. 

C.  665),  428. 
Railway  v.  Sinning   (6  C.  D.  753,  17 

C .  C.  649) ,  162. 


Railroad    v.    Smith    (22   0.    S.    227), 

444. 
Railway  v.  Snell  (54  O.  S.  197),  135. 
Railway   v.   Snyder    (24  O.   S.   670), 

118. 
Railway  v.  Snyder   (21  C.  C.  [KS.] 

504),  131. 
Railway  v.  Stanton  (16  C.  C.  [N.S.] 

397),  313. 
Railroad  v.  Steinfeld   (42  O.  S.  449), 

545. 
Railways  v.  Stoltz   (9  C.  D.  638,  18 

C.    C.    93),   406,   440,   447. 
Railroad  v.  Suhrwiar   (20  C.  C.  558, 

10  C.  D.  715),  428. 
Railway  v.  Tehan   (10  C.  D.  457,  4 

C.   C.    [N.S.]    145),   141,   145. 
Railway  v.   Terry    (14   C.   C.  536,  7 

C.  D.  597),  409. 
Railway  v.  Thompson   (21  C.  C.  778, 

12  C.  D.  326),  202. 
Railway  v.  Tucker   (7  C.  D.  169,  13 

C.  C.  411),  138. 
Railway  v.  Ullom    (20  C.  C.  512,  11 

C.  D.  321),  210,  400,  407. 
Railroad  v.  Van  Horn   (21  C.  C.  337, 

12  C.  D.  106),  134,  173,  406,  446, 

447. 
Railway  v.  Vogelson  (3  C.  C.  [N.S.] 

581,  13  C.  D.  301),  237,  398. 
Railway    v.    Wadswortli     (1    C.    C. 

[N.S.]   483,   15   C.  D.  370),   134. 
Railway  v.  Wales    (11   C.   C.  371,  5 

C.  D.  168),  06. 
Railroad   v.   Walker    (45   0.   S.  577, 

582),  5. 
Railway   v.   Ward    (2   C.   C.    [N.S.] 

2.56,  15  C.  D.  399),  39,  62,  179, 

350. 
Railway  v.   Waterworth    (11    C.    D. 

621,  21  C.  C.  495),  296,  321,  347, 

407. 
Railway   v.   Weingertner    (93    0.    S. 

124),   135. 
Railroad  v.  Welsh   (89  O.  S.  81),  18, 

49,  489,  490. 


TABLE    OF    CASES 


Ivii 


[References   are   to   pages.] 


Railway  v.  Westenhiiber    (12  C.  D. 

22,  22  C.   C.    67),   138,   446. 
Railway  v.   Whidden    (13  C.  D.   85, 

2   C.    C.    [N.S.]    544),    106,   411, 

412. 
Railroad  v.  Whitacre  (35  0.  S.  627  ^ 

160. 
Railway  v.  Williams   (53  O.  S.  268), 

562. 
Railway  v.  Willing   (5  C.  C.   [N.R.] 

137,  14  C.  D.  474,  477),  226. 
Railroad   v.   Wilson    (31    0.    S.   555, 

560),  4,  22. 
Railway  v.  Workman   (66  O.  S.  500, 

546),  469,  495. 
Railway  v.  Woulfe   (15  C.  C.  [N.S.] 

147,  24  C.  D.  123),  40. 
Railway  v.  Yokes    (12  C.  C.  499,  5 

C.  D.  599),  266,  267,306. 
Railway  v.  Zepperlein    (1   C.  C.  36, 

1  C.  D.  22),  106. 
Railways   v.   Prus    (7   0.   App.   412, 

28  0.   C.  A.  369,  29   C.  D.   65), 

383,   427,   428. 
Railways  &  Light  Co.  v.  Poland   (7 

0.   App.   397,   27    0.   C.   A.    105, 

28  C.  D.  198),  122,  171,  241,  428. 
Railroad  Trainmen  v.  Daley    (11   C. 

C.  [X.S.]  464,  21  C.  D.  391),  343. 
Ralston  v.  Kohl    (30  O.  S.  92),  149, 

479. 
Ralston    v.    McBurney    (6    0.    App. 

303,  27   O.   C.  A.  310,  29  C.  D. 

158),  470,  471. 
Rammelsburg  v.  Mitchell    (29  0.  «. 

22,  52),  543. 
Randall  v.  Turner  (17  O.  S.  262),  8, 

550. 
Rankin   v.  Hannan    (38  O.   S.  438), 

13,  362,  393. 
Ransom  v.  Ilaberer  (13  C.  C.  [N.S.] 

511,  22   C.   D.   592),  358,  366. 
Rapp  V.  Becker  (4  C.  C.  [N.S.]  139, 

16  C.  D.  321),  125. 
Rason  v.  State   (78  O.  S.  449),  170. 


RatclifT    V.    Teters     (27    O.    S.    66), 

497. 
Ratterman   v.   Phipps    (3   K   P.   69, 

4  0.  D.  453,  456),  50. 
Rauh,   In    re    (65    O.    S.    128),   331, 

347,  367,  459. 
Raymond  v.  Trustees  (7  O.  App.  56, 

28  O.  C.  A.   129,  29  C.  D.  242), 

109. 
Reber  v.  Machine  Co.  (12  0.  S.  175, 

179),  139. 
Reed  v.   McGrew    (5   Oh.   376),  548. 
Reed    v.    State    (15    Oh.    217),    196, 

454,  493. 
Reed  v.  State    (98  O.   S.   279),  180, 

184. 
Reep  V.  Lyman  (6  C.  C.  [N.S.]   113, 

17  C.  D.  293),  530. 
Reese    v.    Mannen    Co.     (19    C.    C. 

[N.S.]    194),   123. 
Reeves    Bros.    Co.    v.    Coehli    (6    O, 

App.  32,  26  C.  C.  [N.S.]  372,  28 

C.  D.  397),  323. 
Reid   V.   Board   of   Education    (6  N. 

P.  [N.S.]  526,  16  O.  D.  414),  15. 
Reid   V.   Mathers    (14   C.   C.    [N.S.] 

473,  23  C.  D.  345),  506. 
Reid  V.   Sycks    (27  0.   S.  285,  288), 

126,  539. 
Reiff  V.  Mulholland    (65  0.  S.   178), 

3. 
Reighard  v.   State   (22  C.  C.  340,  12 

C.  D.  382),  317,  318. 
Reilly,   In    re    (7    O.   L.   R.   334,  54 

Bull.  382),  331. 
Keinhard  v.  City   (49  O.  S.  257,  66), 

53. 
Reinhard     v.     Rcinhard     (3     N.     P. 

[N.S.]    2S0,   15  0.   D.  741),  528. 
Reinhart,  In  re    (9  0.   D.  441,  6  N. 

P.   438),   180. 
Reis  V  Hellman   (25  O.  S.  180),  235. 
Reynolds   v.    Morris    (7   0.    S.   310), 

137. 
Reynolds  v.  Morris    (17   O.  S.  510), 


Iviii 


TABLE    OF    CASES 


[References  are   to   pages.] 


Reynolds    v.    Rogers     (5    Oh.    160), 

296. 
Reynolds   v.    Schweinefus    (27   0.   S. 

311,  320),  36,  486. 
Reynolds  v.  Smitz    (9  C.  D.  484,  18 

C.  C.  84),  149. 
Reynolds    v.    Tucker    (6   O.   S.   516, 

519),  181,  211,  299. 
Reynolds  v.  Walker   (36  Bull.  167), 

184,  383. 
Rhodes  v.  Baird  (16  O.  S.  573),  171. 
Rhodes  v.  Gunn   (35  O.  S.  387,  395), 

30,   54,  58,   495. 
Rhodes   v.   Mooney    (43   O.   S.   421  ^ 

7,  8. 
Rice,  In  re    (IS  N.  P.    [N.S.]    489), 

568. 
Rice  V.  Lumley    (10  0.   S.  596),  33. 
Richard  v.   State,  ex  rel.    (17  C.  C. 

[N.S.]    51),  314. 
Richards  v.  Bunte    (15  C.  C.  [N.S.] 

401,  23  C.  D.  37),  462. 
Richards  v.  Foulks   (3  Oh.  66),  220. 
Richards   v.    Hale    (1    C.    C.    [N.S.] 

181,  14  C.  D.  468),  527. 
Richards  v.  Parsons  (7  O.  App.  422, 

29  O.  C.  A.  359,  31   C.  D.   195), 

84,  541. 
Richards  v.  Skiff   (8  O.  S.  586),  465, 

512. 
Richardson  v.  Curtiss  (33  O.  S.  320), 

123. 
Richardson  v.  Hughes  (Wright  648), 

281. 
Richardson   v.    Wingate    (10    W.    L. 

J.    145,    1    0.    D.    R.    478),    4S0, 

482. 
Richmond  v.  Oil  Co.   (8  N.  P.  22,  S 

0.  D.  583),  273,  565. 
Richmond  v.  Patterson   (3  Oh.  368), 

486. 
Richter  v.  Loan  Co.   (7  C.  C.  [N.S.] 

360,  17  C.  D.  793),  1.30. 
Ridenour    v.    Mayo    (29    O.    S.    138, 

145),  57,  58. 


Ridenour   v.    State    (38   0.    S.   272), 

302. 
Rider    v.    Fritchey     (49    O.    S.    285, 

291),   15. 
Rindskoff   v.   Doman    (28  0.    S.  516, 

520),   50. 
Riolo  V.  St?,te  (19  C.  C.  [N.S.]  248), 

233,  377,  398. 
Riordan  v.  Denehy   (9  N.  P.   [N.S.] 

406,  20  0.  D.  260),  467. 
Ritchy  V.  Martin  (Wright  441),  279. 
Ritzman  v.  Campbell  (93  O.  S.  246), 

488. 
Robbing   v.   Budd    (2   Oh.    16),   507. 
Bobbins    v.    Klein    (60    0.    S.    199), 

569. 
Robbins  v.  State   (8  O.  S.  131),  111, 

221,  222. 
Roberts    v.    Briscoe    (44    0.    S.    596, 

602),  352,  360,  362,  367. 
Roberts  v.  Briscoe    (1   C.   C.   577,  1 

C.  D.  .323),  277,  280,  517. 
Roberts   v.    Mason    (10   0.    S.   277), 

209. 
Roberts  v.  Remy   (56  O.  S.  249),  30, 

361. 
Roberts    v.    Roberts     (8    W.    L.    J. 

372,  1  0.  D.  R.  368),  219. 
Robinson   (In  re   (9  O.  D.  763,  7  N. 

P.  105),  .368. 
Robinson    v.    Bank    (44    0.    S.    441, 

448),  531. 
Robinson    v.    Gary    (28   O.    S.    241), 

106. 
r.obinson  v.  Harrison    (9  O.  D.  701, 

7  N.  P.  273),  .326. 
Eobinson    v.    McConnell     (10    C.    D. 

707,  19  C.  C.  716),  331. 
Robinson  v.  Upton   (12  C.  C.  [N.S.] 

314,  21  C.  D.  330),  53. 
Rodeff   V.   Railway    (7   O.    App.    73, 

27  0.  C.  A.  571,  20  C.  D.  105), 

133. 
Rodgers  v.   Edmund    (12   C.  D.   201, 

21   C.  C.  675),  276. 
Rogers   v.  Dare    (Wright   136),  344. 


TABLE    OF    CASES 


lix 


[References  are   to   pages.] 


Rogers  v.  :Monroe    (26  C.   C.    [N.S.l 

193),  321,  412,  434.    • 
Rogers    v.    State    (14    C.    C.    [X.S.] 

^  177,  22  C.  D.  3Sn),  190. 
Rogers  v.  \Yoodruff   (23  0.   S.   632), 

553. 
Rolling  Mill   v.   A<kly    (6  A.   L.   R. 

764,  5  0.  D.  R.  5SS),  552. 
Rolling  Mill  v.  Packard  (1  C.  C.  76, 

1  C.  D.  46),  65,  405. 
Romans  v.  State  (51  O.  S.  528,  30), 

95. 
Roos    V.    Sykes    (14    X.    P.    [N.S.] 

367),  5. 
Root   V.   Monroeville    (16   C.   C.   617, 

4   C.   D.   53),    169,  274. 
Root    V.    Railroad    (45    0.    S.    222), 

520. 
Roots  V.  Insurance  Co.   (1  Dis.  138, 

12  O.  D.  R.  535),  567. 
Roots  V.   Kilbreth    (18   Bull.  58,   10 

0.  D.  R.  20],  32,  133. 
Rose  V.  State    (7   C.   D.   226,   13   C. 

C.   342),   94,   115,   204,   237,  238, 

^68,  373,  426. 
Rosenthal    v.    Mayhugh    (33    0.    S. 

1.55),  33,  232. 
Ross  V.  Todd   (2  C.  D.  385,  4  C.  C. 

1),  357. 
Rossman  v.  McFarland  (9  0.  S.  369, 

383),  44. 
Roth    V.    State    (51    O.   S.    209),  50. 
Rothschild   v.  Hudson    (6  Bull.   752, 

8  0.  D.  R.  259),  378. 
Roush  V.  Wensel   (8  C.  D.  141,  15  C. 

C.    133),   282,   397,   39S,   43.3. 
Rowland   v.    Griffiths    (3    Bull.    590, 

6  0.  D.  R.  619),  355. 
Rubber    Co.    v.    McClurg     (6    C.    C. 
[X.S.]    .5.56,   17  C.   1).  493),  321. 
Rubber  Co.  v.  Supply  Co.   (12  C.  C. 

IX.S.]    243,  21   C.    I).  5.57),  305, 

309,  532. 
Ruch  V.  State    (18  C.  C.   [X.S.]   391, 

24    C.   D.   675,   2  0.   App.    150), 

336. 


Rudy  V.  Rudy  (14  C.  C.   [N.S.]  545, 

23  C.  D.  .359),  89. 
Rufer  V.   State   (25  0.  S.  464),  203," 

247,  248,  250,  288,  300. 
Ruffner  v.  Railroad  (6  A.  L.  R.  685, 

5  0.  I).  R.  .569),   128. 
Rumbaugh  v.  McCormick    (80  0.  S. 

211,  217),    160,  201. 
Runyan,  In  re    (7    0.   D.   236,  4   N. 

P.  335),  357. 
Runyan   v.   Price    (15   0.   S.    1,   14), 

65,  223,  224,  397,  432,  434,  460. 
Rupp  V.  Schaffer    (21   C.  C.  643,  12 

C.  D.  154),  172. 
Russell   V.    Bank    (23    C.   C.    [N.S.] 

1,  4  0.  App.  378,  27  C.  D.  17), 

245. 
Russell   V.    Bank    (26    C.    C.    [X.S.] 

529),  245. 
Russell    V.   Bruer    (64   0.    S.    1),   84 

541. 
Russell   V.   Russell    (6   C.   C.   294,  3 

C.  T).  460),  101. 
Russell  V.   Tippin    (5   C.   D.   443,   12 

C.  C.  .52),  .336. 
Russell  V.  Toledo    (19  C.  C.  418,  10 

C.   D.   367),    199. 
Russell   V.    Wcilor    (7    C.    C.    [X.S.] 

596,   18   C.  D.   176),  194. 
Pyan  v.   O'Connor    (41   0.    S.   368), 

329,  353,  539,  541. 
Ryan   v.   Schardt    (12   C.   C.    [X.S.] 

269,  22  C.  D.  445),  101. 
Ryan  v.  State   (10  C.  C.   [N.S.]  497, 

20  C.  D.  306),  423. 


Baffin  V.  Tliomas   (4  C.  D.  43*^.  H  ( '. 

C.  253),  178,  441. 
St.  Clair  v.  Orr   (16  O.  S.  220),  .35S. 
Sanns  v.  X'eal    (52  O.  S.  56),  57. 
Sargent   v.    Sargent    (11    ().    1).   21S, 

S  X.   P.  238),  510. 


Ix 


TABLE    OF    CASES 


[References  are   to   pages.] 


Sasser  v.   State    (13   Oh.   453),  451, 

493. 
Sayer  v.   Ryan    (9   C.   C.   631,   6   C. 

D.   732),  180,  184. 
Scattergood    v.    Ingram     (86    0.    S. 

76),  89. 
Schaal   v.   Heck    (17   C.   C.   38,  8   C. 

D.  596),  66,  293,  378,  414. 
Schaber  v.   Hinig    (18   C.   C.    [N.S.] 

414),  29,  145. 
Scliaupp  V.  Jones    (8  X.  P.   151,  10 

O.  D.  597),  464. 
Scheinesohn   v.    Lemonek    (84  O.    S. 

424,  431),    142. 
Schiff  V.   Sentker   (10  A.  L.  R.  568, 

6  0.  D.  R.  1137),  295. 
Schlief  V.  Hart    (29  0.  S.  150),  563. 
Schmalstig    v.    Taft     (20    0.    C.    A. 

519),  74. 
Schmalstig  v.  Taft   (19  X.  V.  [X.S.] 

513,27  O.  D.  313),  57. 
Schmidt  V.  Cordes  (2  C.  S.  C.  R.  294, 

13  0.  D.  R.  911),  55. 
Schmidt  V.   Turner    (5  C.   C.    [X.S.] 

492,  17  C.  D.  327),  161. 
Schmith  v.  Coulton  (22  C.  C.  [X.S.] 

174),   70. 
Schneider    v.   Reitelbach    (17    X.    P. 

[X.S.]    124,  25  0.  D.   107),  136. 
Schneider   v.    State    (2  C.  C.  420,   1 

C.  D.  565),  255. 
Schnitzer   v.  Cole    (16   C.  D.   387,  4 

C.C.   [X.S.]   319),  150. 
Schoch    V.    Schoch    (6   C.   C.    [X.S.] 

110,  17  C.  D.  828),  291. 
Schoepf,  In  re    (74  O.  S.  1,  12),  216, 

345,  387,  460. 
Schulte   V.  Beineke    (6  O.   D.   529,  4 

X.   P.   207),  242. 
Schultz    V.    Colvin     (55    O.    S.    274, 

288),  30. 
Schultz   V.   Insurance   Co.    (40  0.   S. 

217),  61. 
Schutter   v.   Williams    (1   W.   L.   J. 

319,    1    0.   D.   R.   47),   233,   236, 

27],  347. 


Schwartz     v.     Fridrick     (16    C.     C. 

[XLS.]    290,   291),   404,   406. 
Schwartz  v.  Railway    (8  C.   C.   484, 

4  C.  D.  272),  24. 
Schwartz     v.     Railway     (11     C.     C. 

[X.S.]    65,   20   C.   D.   394),    179. 
Schweinfurth  v.  Railway  Co.   (60  0. 

S.  215,  223,  229),  105,  107,  323, 

324). 
Scott     V.     Wingenberg     (26     C.     C. 

[X.S.]  1,  29  C.  D.  479),  379. 
Scovern  v.  State   (6  0.  S.  288,  294), 

290,  291,  292. 
Scrogin    v.     Cincinnati     (13     C.     C. 

[X.S.]    293,  22  C.  D.  619),   195. 
Seal  V.  Goebel   (11  C.  C.  [N.S.]  433, 

21  C.  D.  286),  104. 
Searles  v.  State    (3  C.  D.  478,  6  C. 

C.  331),  250,  254,   296. 
Sears  v.  Sears    (77  0.   S.   104),  136, 
Seeman    v.    Mining    Co.    (12    C.    D. 

206,  22  C.  C.  311),  531,  532. 
Seese   v.    Maumee    (7    C.    C.    [X.S.] 

497,  18  C.  D.  768),  278. 
Sell   V.   Ernsberger    (8   C.   C.  499,  4 

C.  D.   100),  316. 

Selvaggio  v.  State   (19  C.  C.   [X.S.] 

88,  25  C.  D.  139),  165. 
Selzer  v.   Coal   Co.    (12  C.   D.   787), 

170,  407. 
Serviss  v.  Stockstill    (30  O.  S.  418), 

469,  521. 
Sessions    v.    Trevitt    (39    0.    S.    259, 

267),  347. 
Sever   v.    Commissioners    (21    0.    D. 

679,  13  X.   P.    [X.S.]    585,  592), 

110. 
Seville  v.  State   (49  O,  S.  117),  286, 

416,   419. 
Seville    v.    Wagner     (46    O.    S.    52), 

108. 
Sliadle    v.    Ilhiminating    Co.    (12    C. 

D.  37,  22  C.  C.  49),  298,  307. 
Shahan  v.  Swan    (48  O.   S.   25,  33), 

156,   157,   277. 


TABLE    OF    CASES 


Ixi 


[References  are  to   pages.] 


Shailer  v.   Corcoran    (11   C.   D.   599, 

21  C.  C.  639),  159. 
Sharkey  v.  State   (2  C.  D.  443,  4  C. 

C.  101),   97,   98,   252,   290,   412, 
434. 

Sharp  V.  State  (16  O.  S.  218),  114. 
Sharpe  v.  State  (29  O.  S.  263),  255. 
Shaub  V.  Smith  (50  O.  S.  648),  355. 
Shaul   V.   McCauley    (34   Bull.  278), 

531. 
Shaul  V.  Norman   (34  0.  S.  157,  8), 

102. 
Shaw   V.    Installation   Co.    (17   Bull. 

274,  9  O.  D.  R.  809),  331. 
Sheehan    v.    Davis     (17    O.    S.    571, 

580),  468,  485. 
Shehy    v.    Cunningham     (81    0.     S. 

289),    525,    531,    537,    538,    540, 

546. 
Shehy    v.     Cunningham     (10     C.    C. 

[N.S.]    311,  20  C.  D.   212),  538. 
Shelby   v.   Clagett    (46   O.    S.   549), 

195,  382,  430. 
Sheldon,  In  re    (34  O.   S.  319),  489. 
Sheldon    v.    Coates     (10    Oh.    278), 

495. 
Sheldon   v.    Newton    (3    O.    S.    494), 

512. 
Shelleig,  In  re    (8  N.  P.  399,  11   O. 

D.  81),  99. 

Shelley   v.    State    (19    C.   C.    [N.S.] 

164),  518. 
Shepherd    v.    Willis     (19    Oli.    142), 

32S,  412,  437. 
e,iierer  v.  Piper   (26  O.  S.  476),  241, 

292. 
Sheridan    v.    Tenner    (3    C.  T>.    10,   5 

C.   C.  19),  475. 
Sherlock  v.   Insurance   Co.    (7  O.  D. 

R.   17,  1   Bull.  26),  229. 
Sherwin  Co.  v.  Kananaugh  (22  C.  C. 

[N.S.]  97),  444. 
Sherwin-Williams    Co.    v.    Insurance 

Co.    (20    C.   C    fN.S.l    151),   21. 
Shillito    V.    Robbins    (7    Bull.    74,    S 

O.  D.  R.  313),  454. 


Shinew  v.  Bank   (84  O.  S.  297),  239. 
Shive   V.    [Merville    (15   C.  C.    [X.S.] 

535,  24  C.  D.  193,  1  O.  App.  33), 

647. 
Shriedley  v.    State    (-23   O.    S.    130), 

198,  396,  4S3. 
Shroyer     v.     Richmond     (16     0.     S. 

455),  510. 
Shuey   V.   Fink    (5  O.   App.   359,  26 

C.  C.   [X.S.]    106),  432. 
Sibila    V.    Bahney    (34    O.    S.    399), 

140. 
Sieving  v.  Scidelmcycr  (4  Bull.  213, 

7  0.  T).  R.  609),  347.  . 
Sigler  V.  Rogers   (46  Bull.  190),  417, 

483. 
Sigler   V.    Sl\a(Ter    (9    C.    C.    [N.S.] 

267,  19  C.  D.   423),  509. 
Silver  v.    State    (17   Oh.   365),  333, 

402,  517. 
Silvus   V.    State    (22   0.   S.  90,  101), 

28,  97,  99. 
Simmons   v.   Green    (35   O.   S.    104), 

56. 
Simmons  v.  Publishing  Co.   (4  N.  P. 

89,  6  0.   D.   100,   101),  523. 
Simmons     v.     Saving.s     Society     (2 

Bull.  283,  5  0.  D.  R.  527),  125. 
Simmons    v.    State     (7    O.     [pt.    IJ 

116),  467. 
Simmons   v.    Sup])Iy   Co.    (21    C.    C. 

455,  11  C.  D.  690),  549. 
,"■  imon  v.  Mooney    (22  C.  C.  271,   12 

C.  D.  73),  367. 
Simper  v.   Carroll    (12  C.  C.    [N.S.] 

140,  21   C.  D.  386),  202,  211. 
Simpson   v.   McCairrcy    (13   Oh.  508, 

522),  20!). 
SimjKson  v.  Simj)son   (9  C.  C.  [N.S.] 

137,  19  C.  D.  .503),  86. 
Sinclair   v.   Fear    (4   O.    D.   26,   2   N. 

P.  373),  240. 
Sinks   V.  Reese    (19  O.   S.  306),  497. 
Sinton   v.   Fzokicl    (8    A.   L.  R.   424, 

6  O.  D.  R.  845),  .522,  .560. 
Sipes  V.  Whitney  (30  O.  S.  69),  512. 


Ixii 


TABLE    OF    CASES 
[References  are   to   pages.] 


Sites  V.  Haverstick    (23   O.   S.   626),  [    Snow  v.  State  (1  0.  D.  R.  426,  9  W. 
123.  L.  J.   420),   194. 

Snurr  v.  State   (4  C.  C.  393,  2  C.  D. 

614),  176. 
Snyder  v.  Bank  (22  C.  C.  624,  12  C. 

D.  623),  84,  85. 
Snyder  v.  Ream   (Iddings   167),  178, 

433. 
Souther  v.   Stoeckle    (3  Bull.  575,  7 

0.  D.  R.  511),  260. 
Spangler    v.    Cleveland     (43    O.     S. 

526),  37,  108. 
Spaulding  v.  Railway  (10  C.  D.  660, 

20  C.  C.  99),  396,  397,  399. 
Spears  v.  State    (2  0.  S.  583),  247, 

248. 
Speer  v.  Bishop   (24  0.  S.  598),  142. 
Speller    v.    Brewing    Co.     (5    X.    P. 

[N.S.]    561,  16   0.  D.  520),  445. 
Spencer   v.    Brockway    (1    Oh.    259), 

512. 
Spengler    v.    Sonnenberg    (88    O.    S. 

192),  87. 
Sperry  v.  Tcbbs   (20  Bull.  181,  10  O. 

D.  R.  318),  22,  164,  219,  422. 
Spice   V.    Steinruck,    14    0.    S.    213), 

143. 
Spier  V.   Corll    (33   0.    S.    236),   512, 

513. 
Spitzig  V.  Engineering  Co.   (21  C.  C. 

[N.S.]  348),  481. 
Spoors  V.  Coen   (44  0.  S.  497),  512. 
Spronk  v.   Steel   Co.    (10   C.  D.   675, 

19  C.  C.  714),  55,  145. 
Squires   v.    Martin    (5   C.    C.    [N.S.] 

313,  14   C.   D.   232),   239. 
Stall  V,  Cincinnati    (16   O.    S.    160), 

84. 
Stambaugli   v.  Smith   (23  0.   S.  5", 

595),  568. 
Stanberry  v.   Xelson    (Wright  7'-' 

23. 
Standart    v.    Slielton     (1    W.    L.    j\r. 

405,  2  O.  D.  R.  116),  63. 
Stange  v.   Cleveland    (20   C.   D.   186, 

25  C.  C.   [N.S.]   599,  601.),  17. 


Skelton,  In  re    (20  C.   C.  704,   11  C. 

D.  372),  89. 
Slipman  v.  Telschow   (4  C.  C.  [N.S.] 

635,  14  C.  D.  536),  456. 
Slutz   v.    Desenberg    (2S    O.    S.    371, 

378),  550. 
Smart  v.  Lodge    (6  C.   C.    [N.S.]    15, 

17  C.  D.  273),  344. 
Smiley  v.  Dewey   (17  Oh.  156),  114, 

373,  478. 
Smith  V.  Bank  (13  C.  C.  [N.S.]   122, 

22  C.  D.  342),  53. 
Smith   V.   Bartram    (11    O.   S.    690), 

489. 
Smith  V.  Brown   (12  O.  D.  522),  420. 
Smith   V.    Curtiss    (10   C.    C.    [N.S.] 

149,  20  C.  D.  29),  134. 
Smith   V.   Fuller    (86   0.   S.   57,  66), 

39,  40. 
Smith  V.  Geis   (13  C.  C.   [N.S.]   336, 

22  C.  D.  660),  526. 
Smith   V.   Johnson    (3  X.    P.    [X.S.] 

8,  16  0.  T).  43,  5),  386,  391. 
Smith  V.  Machine  Co.    (26  O.  S.  562, 

565),  4,   18. 
Smith   V.   Xeff    (5   X.   P.   495,   5   O. 

D.  449),  86,  456. 
Smith  V.  Rauh    (14  C.  C.    [X.S.]   33, 

22  C.  D.  515),  409. 
Smith   V.    Simper    (8    C.   D.   308,   15 

C.  C.  375),  68. 
Smith   V.  -State    (2  O.   S.   511),  324. 
Smith  V.  State  (14  C.  C.  [N.S.]  257, 

24  C.  D.   661),  IDl. 
Smith  V.  State  (15  C.  C.  [X.S.]  223, 

24  C.  D.  526),  253,  294. 
Smith  V.  Turpni   (20  O.  S.  478,  492), 

277. 
Smitt  V.  Aultman  &  Taylor  Co.   (25 

C.  C.    [X.S.]    561,  28  C.   D.  46), 

522. 
Snell  V.  Banks  Co.    (16  C.  C.   [N.S.] 

32,  27  C.  D.  323),  5. 


TABLE    OF    CASES 


Ixiii 


[References  are   to   pages.] 


Stanglein   v.    State    (17   0.   S.   453), 

234,  500. 
Star   Co.    V.   Milialovitcli    Co.    (9   N. 

r.    [N.S.]   218,  7   0.   L.   R.  77), 

204. 
Stark  V.  Cress  (4  0.  App.  ^2,  22  C. 

C.  IX.S.]  88),  104. 
Stark  V.  Stark  (17  C.  C.  [X.S.]  398, 

24  C.  D.   135),  509. 
Starr  v.  Wright   (20  0.  S.  97),  539. 
State,  ex    rel.,.  v.    Akins    (18    C.   C. 

349,  10  C.  D.   121),  15. 
State,  ex  rel.,  v.  Aldridge    (66  0.  S. 

598),  494. 
State  V.  Allen   (68  O.  S.  516),  92. 
State  V.  Altoffer  (3  0.  D.  288,  2  N. 

P.  97),  190. 
State,  ex   rel.,   v.   Arcliibakl    (52   O. 

S.  1),  4. 
State  V.  Austin    (71  O.  S.  317,  321), 

32,  46,  70,  97,  98. 
State    V.    Bair     (50    Bull.    11),    238, 

253,  281,  287. 
State  V.  Bates   (4  N.  P.   [X.S.]   502, 

17  0.  D.  301),  349. 
State  V.  Bony  (13  C.  C.  [N.S.]  200, 

22  C.  D.  2.')0),  486,  499. 
State  V.  Bone    (25  C.  C.   [X.S.]   447, 

27  C.  D.  472),  3.50. 
State   V.  Born    (85  0.   S.   430),  416, 

496. 
State    V.    Brown     (20   X.    P.    [X.S.] 

3:'5,  2;-!  0.  1).  213),  339. 
State,  ex  rel.,  v.  Buchanan  (Wright 

2.3.-:),  11,  12,  217,  453. 
State  V.  Pudd   (05  0.  S.  1,  5),  325, 

327. 
State    V.    Purkliardt     (3    Bull.    845, 

7   r.   I).   R.   537),  346. 
State  V.  Buttles    (3  O.  S.  309,  324), 

17. 
State    V.    Campbell    (SO   O.    S.   335), 

221. 
State  V.  (•ai:.phcn    (11  X.  P.    fX.S.] 

673,  £1  O.  I).  H.-)3),  221. 


State   V.   Cappeller    (39  0.   S.   455), 

110. 
State    V.    Clark    (10    Bull.    202,    16 

Bull.  17S),  3.50. 
State  V.  Cinti.  Tin,  etc.,  Co.   (66  O. 

S.  182),  75. 
State  V.  Coit  (8  0.  D.  62),  39. 
State    V.    Collingsworth    (82    0.    S. 

154),  416. 
State    V.    Conser    (5    C.    C.     [N.S.] 

119,  14  C.  D.  270),  499. 
State  V.  Cook  (66  O.-S.  566,  70),  80. 
State    V.    Cook    (Tappan    [53],    85), 

285. 
State,  ex  rel.,  v.  Cost   (22  Bull.  250, 

10  0.  D.  R.  619),  368. 
State  V.   Courtright    (66  O.   S.   35), 

92,  333. 
State  V.  Cox   (87  0.  S.  313),  341. 
State  V.  Cuppett    (1  W.  L.  M.  329, 

2  0.  T).  R.  78),  514. 
State,   ex   rel.,   v.    Darby    (17    Bull. 

62,  9  O.  T).  R.  725),  414. 
State  V.  Davis    (90  O.   S.   100),  155 

206. 
State,  ex  rel.,  v.  Do:\ruth    (96  O.  S. 

519,   526),   17. 
State  V.  Dickerson  (77  O.  S.  34),  23, 

165,   175,  185,   186,   187,  20.3. 
State,  ex  rel.,  v.  Donnewirth   (21  0. 

S.  216),  38,  498. 
State   V.  Doty    (94   O.   S.   258),   253, 

256,  284,   288. 
State  V.  Ehinger  (67  0.  S.  51),  442. 
State   V.    Finney    (1    Bull.   30,   7  0. 

D.  R.  22),  198. 
State,  ex  rel.,  v.  Fosdick   (15  N.  P. 

[X.S.]    630),  110. 
State,  ex  rel.,  v.  Freed  (6  C.  D.  5.50, 

10  C.  C.  2:^4),  25,  51. 
State  V.  Prit:^  (11  X.  P.  [X.-,.]  1.38), 

23. 
State  V.  Gei;-rr   (70  O.  l\.  400),  310. 

,  rtate  V.  o:i)"bs  (9  X.  P.  [::.s.]  129, 

20  O.  D.  1) ,  25 1. 


Ixiv 


TABLE    OF    CASES 


[References  are  to   pages.] 


State,  ex  rel.,  v.   Gibson    (15  0.   D. 

73,  2  N.  P.  [N.S.]  221,  220),  15. 
State  V.  Grayson    (18   Bull.   221,   10 

O.  D.  R.  55),  215. 
State   V.   Griffith    (18   N.   P.    [N.S.] 

161),  390. 
State  V.  Gross   (91  O.  S.   161),  129. 
State  V.  Groves   (80  O.  S.  351,  359), 

487. 
State  V.  Halm    (8  K  P.   101,  11  O. 

D.  311),  185. 
State  V.  Hall  <3  N.  P.  125,  4  O.  D. 

147,  148),  24,   165. 
State   V.   Hare    (87  O.   S.   204),  192, 

335. 
State  V.  Harper   (35  O.  S.  78),  223. 
State  V.  Haugh   (4  N.  P.  [N.S.]   79, 

16  O.  D.  477),  254. 
State,  ex    rel.,  v.  Hawes    (43   0.   S. 

16),  2. 
State,  ex  rol.,  v.  Hills  (94  0.  S.  171), 

124,  302. 
State  V.  Hinkelman  (13  C.  C.  [N.S.] 

321,  22  C.  D.   1),  110,  316,  499. 
State   V.   Holden    (20   N.   P.    [N.S.] 

200,  28  0.  D.  123),  334. 
State   V.   Hoover    (17   N.   P.    [N.S.] 

65,  24  0.  D.  212),  254. 
State    V.    Huff  man    (86    0.    S.    229, 

243),  168,  230. 
State,  ex  rel.,  v.  Hyman    (21   C.   C. 

187,  11  C.  D.  559),  175. 
State   V.    Ice    Co.    (4    N.    P.    [N.S.] 

361,  16  0.  D.  735),  250,  253. 
State  V.  Japan  Co.    (66  0.   S.   182), 

295,  492. 
State,    ex    rel.,    v.   Jones    (95    0.    S. 

357),  513. 
State,  ex   rel.,   v.   Jones    (22    C.    C. 

682,  11  C.  D.  496),  487,  488. 
State,  ex  rel.,  v.  Kiesewetter  (45  O. 

S.  254),  17,  487. 
State  V.  Kindle   (47  O.  S.  358),  221, 

222,  223. 
State  V.  Kirves    (Tddings   9),  212. 


State  V.  Knapp    (70  0.  S.  3S0),  28, 

248,  256,  257,  258. 
State    V.    Kollar    (93  O.    S.    89,   91), 

299,  304. 
State  V.  Lasecki   (90  O.  S.  10),  263, 

309. 
State    V.   Lawrence    (74   O.    S.    38), 

177. 
State   V.   Lehr    (97   0.    S.   280),  334. 
State  V.  Lent    (Tappan  105),  453. 
State  V.  Leuth   (5  C.  C.  94,  3  C.  D. 

48),  220,   251,   256,   257,  401. 
State,   ex   rel.,   v.   Lewis    (64  O.   S. 

216,  234),  3. 
State  V.  Linder   (76  0.  S.  463,  465), 

122,  164,  175. 
State  V.   Lopa    (96  O.  S.  410,  412), 

402,  419. 
State  V.  McCoy   (52  O.  S.  157),  117, 

335. 
State  V.  IMcGinly    (2  W.  L.  M.  594, 

2  O.  D.  R.  398),  79. 
State    V.    Maranda    (94    0.    S.    364), 

257,  258. 
State,  ex   rel.,  v.  ISIarkley    (9   C.  C. 

[N.S.]    561,  20   C.   D.   113),  386, 

498,  499. 
State  V.  Miller   (7  C.  D.  552,  13  C. 

C.  67),  435. 

State,  ex  rel.,  v.  Moffitt  (5  Oh.  358), 

488. 
State  V.  IMoore  (8  0.  D.  674,  34  Bull. 

276),  222. 
State  V.  Morris    (5  N.   P.   232,  7   0. 

D.  84),  258. 

State  V.  IMorrow   (90  O.  S.  202),  341. 
State    V.    Mulford    (12    0.    D.    720), 

18,  21. 
State  V.  IMurray  (82  O.  S.  305),  385. 
State   V.  Myers   (8  O.   D.  679,  7   N. 

P.  638),  99. 
State  V.  Nelson   (52  O.  S.  88,  102), 

15. 
State  V.  Nevin    (23  BulL  411),  203, 

380. 


TABLE    OF    CASES 


Ixv 


[References   are   to    pages.] 


State  V.  Xuttles    (4  Bull.   063,  7  O. 

T).  R.  686),  120. 
State  V.  Oil  Co.   (51  Bull.  563),  2S6, 

287. 
State   V.   Orth    (79  O.   S.   130),  340. 
State,  ex   rel.,  v.  Patterson    (84   0. 

S.  80),  498. 
State   V.   Paj-ton    (21   Bull.   337,   10 

0.  D.  R.  826),  349. 
State    V.    Penn     (34    Bull.    51),    102. 
State  V.  Pereles   (12  O.  D.  642),  157. 
State   V.    Perry    (Wright   662),   274, 

492. 
State,  ex  rel.,  v.  Price   (4  C.  D.  2!)G, 

8  C.  C.  25),  487,  488. 
State,  ex  rel.,  v.  Railway   (11  C.  C. 

[X.S.]   263,  20  C.  D.  632),  36. 
State,   ex   rel.,  v.  Register   Co.    (13 

C.  C.   [N.S.]   73,  21  C.  D.  637), 
286. 

State  V.  Reineke  (89  0.  S.  390),  176. 
State  V.  Rhoads   (29  0.  S.  171),  407, 

418. 
State  V.  Rhoads  (81  O.  S.  397),  254, 

460,  463. 
State   V.    Rhodes    (15   N.   P.    [N.S.] 

117),  157. 
State   V.    Robinson    (S3    O.    S.    136, 

143),  113,  117,  3.34,  335. 
State    V.    Roderick     (77    O.    S.    301, 

300),  186,   1S8. 
State   V.   Ross    (15   Bull.   238),  337. 
State  V.  Sappienza  (84  O.  8.  63,  71), 

79,  96,   97. 
State  V.  Sisson   (0  N.  P.  [X.S.]  420, 

20  O.  D.  205),  514. 
State,  ex  rel.,   v.    Smith    (44   O.   S. 

348,  362),  4,  14,   17,  487. 
State   V.   Smith    (7   N.   P.   72,   9   O. 

D.  740),  349. 

State  V.  Snell    (2  X.  P.  5.5,  5  O.  D. 

670),  283. 
State,  ex  rel.,  v.   Spcigel    (22   C.   C. 

[N.S.]  337,  344),  468. 
State  V.   Spring   (Tappan   135),  106, 

518. 


State  V.   Stout    (49  O.  S.  270),  192. 
State  V.  Summons    (0  W.  L.  J.  407, 

1  0.  D.  R.  416),  248. 
State,  ex  rel.,  v.  Terminal  Co.   (1  C. 

C.    [X.S.]    513,    14    C.    D.    321), 

444. 
State  V.  Tippie    (89   0.   S.  35),  212. 
State    V.    Turner    (Wright    20,    28), 

112,  153,  417. 
State  V.  Tuttle  (67  O.  S.  440),  116, 

3.35. 
State  V.  Vancak   (00  O.   S.  211,  4), 

99. 
State  V.   Vanderbilfc    (37   0.    S.   590, 

631),  110. 
State    V.    Wallahan     (Tappan    48), 

458,  497,  527. 
State   V.   Wells    (11    Oh.   261),  486, 

492. 
State  V.  Wing   (66  0.  S.  407),  2.30. 
State  V.  Woodruff  (Tappan  58),  425. 
State  V.  Woolard    (12  X.  P.    [X.S.] 

305,  22  0.  D.  652),  100. 
Steamship   Co.   v.   Chanfordi    (22  C. 

C.    [X.S.]    310),   119. 
Stearns    v.    Cox    (17    Oh.    500),   210, 

306. 
Steele  v.  Worthington   (2  Oh.   182), 

526. 
Steel  Co.  V.  lanakis    (03  O.  S.  301. 

303),  112. 
Steel    Works    v.    Dewey     (37    0.    S. 

242),  556. 
Steen   v.   Friend    (11    C.   D.   235,   20 

C.  C.  4.50),  8,  177,  238. 
Stephenson  v.   Leesburgli    (33  O.   S. 

475),  3. 
Stornberger  v.  Hanna  (42  O.  S.  3051. 

354. 
Stetson  V.  Bank   (2  O.  S.   167),  280, 

203,  2!)5. 
Stetson  V.  Bank   (12  O.  S.  577,  5i7), 

235,   280. 
Stevens  Co.  v.  Blum  (17  C.  C.  [X.S.] 

115),  43,  105. 


Ixvi 


TABLE    OF    CASES 


[References  are   to   pages.] 


Stevens   v.  Hartley    (13  0.   S.  525), 

352,  356. 
Stevens    v.    Railway    (20    C.    C.    41, 

11  C.  D.  168),  534. 
Stevenson  v.   Morris    (37   O.   S.    10), 

127,  268. 
Stewart  v.  Bridge  Co.   (8  C.  D.  454, 

15  C.  C.  601),  128. 
Stewart  v.   Gordon    (60  O.   S.   170), 

82,  84. 
Stewart  v.  Hoag  (12  O.  S.  623),  54. 
Stewart  v.  State   (10  Oh.  302,  307), 

166,  260,  376,  407,  418. 
Stewart  v.  State    (1  O.  S.  66),  208. 
Stewart  v.  State  (22  0.  S.  477),  191, 
Stewart    v.    Welch     (41    O.    S.    483, 

497),  219. 
Stick  V.  State  (13  C.  D.  392,  3  C.  C. 

[N.S.]   611),  94,  95,  97. 
Stites  V.  Hier   (11  N.  P.  [N.S.]   161, 

25  0.  D.  88),  429. 
Stites   V.   Wiedner    (.35   O.    S.   5.55), 

546. 
Stitt  V.  Wilson    (Wright  505),  279. 
Stockstill  V.  Railroad  (24  O.  S.  83), 

127,  128. 
Stockwell  V.  Coleman   (10  O.  S.  33), 

505. 
Stockwell   V.   State    (27  O.   S.  563), 

175. 
Stolz  V.  Selz   (12  O.  D.  664),  494. 
Stone   V.   Sanders    (18   C.   C.    [N.S.] 

445),  146. 
Stone  V.  Vance    (6  Oh.  246),  532. 
Stone    Co.    v.    Whigham    (23    C.    C. 

[N.S.]   529),  .53,  65,  405. 
Stove    Co.    v.    Railroad     (23    C.    C 

[N.S.]    260),  561. 
Stove  Co.  V.  Reep   (9  C.  D.  467,  18 

C.   C.   .58),   405. 
Stowe-Fuller    Co.    v.    Dominick    (20 

C.  C.   [N.S.]   556),  144,  145. 
Strader  v.  Lloyd   (1  W.  L.  J.  396,  1 
O.  P.  R.  57),  491. 


Strader  v.  Mullane    (17   0.   S.   624), 

102. 
Straub  v.  State   (5  C.  C.  [N.S.]  520, 

17  C.   D.   50),  334,  335,  419. 
Straus  v.  Payne   (1  W.  L.  J.  410,  1 

O.  D.  R.  61),  454. 
Strauss  v.  Conneaut  (3  C.  C.  [N.S.] 

445,   13  C.  D.  320),  20. 
Strauss   v.   Dashney    (12   Bull.    182, 

9  0.  D.  R.  329),  66. 
Straw  V.   Dye    (2  W.   L.  M.  388,  2 

0.  D.  R.  312),  328. 
Street  Railway  v.  Findley  (46  Bull. 

217),  320. 
Street   Railway   v.   Kelley    (6   C.   C. 

155,  3  C.  D.  393),  199. 
Stribley  v.  Welz    (4  C.  D.  520,  8  C. 

C.  571),  178,  262. 
Strick  v.  Kiss   (5  0.  App.  292,  26  C, 
C.    [N.S.]    456,   27    C.    D.    554), 
434. 
Strong  v.  Schmidt   (7  C.  D.  233,  13 

C.  C.  302),  526. 
Studer  v.  State  (9  C.  C.  [N.S.]   185, 

19  C.  D.  33),  291,  29.5. 

Stull  v.  Wilcox    (2  O.   S.  569),  369. 

Sucher  v.   Burger    (13  N.  P.    [N.S.] 

161,  22  O.  D.  385),  319,  320,  343, 

Sullivan  v.  Fogarty    (3  N.   P.  79,  6 

O.  D.  130),  66. 
Sullivan  v.  Starkey  (14  C.  C.  [N.S.] 

281,  22  C.  D.  485),  396,  422. 
Summers  v.  Thomas   Co.    (82  O.   S. 

338),  243. 
Summons   v.    State    (5   O.    S.   325), 

229,  230. 
Supreme  Conclave  v.  Fife  (16  C.  C. 
[N.S.]  205,  27  C.  D.  638),  67. 
Sutcliffe  V.  State  (18  Oh.  469),  516. 
Suydam  v.  Ins.  Co.  (18  Oh.  459),  87. 
Swing  V.  Rose  (75  O.  S.  355),  417. 
Swisher   v.    Swisher    (Wright    755), 

526. 
Szalkai  v.   State    (96  0.   S.  36),  99, 
188. 


TABLE    OF    CASES 


Ixvii 


[References  are   to   pages.] 


Tabler  v.  State   (34  O.  S.  127,  134), 

28. 
Taddeo    v.    State    (22   C.   C.    [N.S.J 

281,  3),  238,  253. 
Tarbox  v.  State  (38  O.  S.  581,  584), 

197. 
Tate  V.   State    (76  O.   S.   537),  341. 
Taylor  v.  Becker    (0  Bull.  25,  8  O. 

D.  R.  151),  546. 
Taylor  v.  Boggs  (20  O.  S.  516),  142, 

220,  202,  529,  567. 
Taylor  v.  Brown  (92  0.  S.  287),  194. 
Taylor   v.    State    (12    C.    C.    [N.S.I 

486,  21  C.  D.  602),  67,  99. 
Taylor   v.    Taylor    (7   N.   P.    [N.S.] 

297,  19  0.  D.  829),  529,  563. 
Teare  v.  Cain   (7  C.  C.  375,  4  C.  D. 

643),  543. 
Telegraph  Co.  v.  Griswold  (37  O.  S. 

301),  76. 
Telegraph   Co.   v.    Smith    (64   O.    S. 

106),  206,  209. 
Telegraph  Co.  v.  Sullivan   (82  O.  S. 

14,  23),  76,  239. 
Telephone   Co.   v.   Jackson    (4  C.  C. 

[N.S.]    386,   If)    C.    D.    89),    162, 

169,  215,  308,  370. 
Telephone  Co.  v.  Telephone  Co.   (91 

O.  S.  398),  9. 
Telephone   Co.   v.  Telephone  Co.    (7 

N.  P.  [N.S.]  425,  19  0.  D.  202), 

159. 
Terry  v.  State   (3  C.  C.  [N.S.]   593, 

14  C.  D.   Ill),  294,  308. 
Thatcher   v.   Heisy    (21    0.   S.  668), 

147. 
Thayer  v.   Luce    (22  0.   S.  62,  76), 

294,  308,  470,   471,  564,  565. 
Thevenin   v.    Slocum    (16   Oh.   519), 

495,  520. 
Thomas  v.  Bank    (1  C.  L.  R.  37,  4 

O.  D.  R.  32),  22. 
Thomas  v.  Beebe  (8  O.  D.  231,  5  N. 

P.  32),  331,  368. 


Thomas  v.  Boyson   (21  C.  C.  302,  11 

C.  D.  773),  209. 
Thomas  v.   Ilargrave    (Wright  595), 

271. 
Thomas  v.  Matthews    (94  O.  S.  32), 

60. 
Thomas  v.  Trust  Co.   (81  O.  S.  432, 

445),  532,  553,  554. 
Thompson,  In   re    (16  N.   P.   [N.S.] 

121),  87. 
Thompson   v.    Ackerman    (12   C.   D. 

456,  21  C.  C.  740),  215,  291,  388. 
Thompson  v.  Bank   (13  C.  C.  [N.S.] 

515,22  C.  D.  131),  77. 
Thompson  v.  Jones  (13  C.  C.  [N.S.] 

493,  23  C.  D.  182),  89. 
Thompson  v.   Pruden    (9  C.  D.   857, 

18  C.  C.  886),  532. 
Thompson    v.    Thompson     (4    O.    S. 

333),  561. 
Thompson    v.    Thompson    (13   O.   S. 

356),  231,  267,  281,  282. 
Thompson   v.    Thompson    (18   O.    S. 

73),  356. 
Thompson   v.    Thompson    (2   W.   L. 

M.  84,  2  O.  D.  R.  214),  466. 
Thurman  v.   State    (4  C.   C.    141,  2 

C.   D.   466),   186,   188,   268,   299, 

301,  373,  382. 
Thurston  v.  Ludwig  (6  0.  S.  1),  548. 
Tillyer   v.   Glass    Co.    (13    C.    C.   99, 

7  C.  D.  209),  220,  269,  525,  532, 

554,  557. 
Tims  V.  Tims   (14  C.  C.   [N.S.]   273, 

22   C.   T).   506),  396. 
Tipton    V.    Ross    (10   Oh.   273),  276. 
Tish   V.  Welkcr    (5  O.  D.  725,  7  N. 

P.  472),  322. 
Titus  V.   Kyle    (10   0.    S.   444),  530. 
Titus  V.  Lewis  (33  O.  S.  304),  2,  42, 

53,  105. 
Todd  V.  Pub'g.  Co.    (9  C.  C.   [N.S.] 

249,   19  C.  D.   155),  141,  142. 
Toledo   V.   Libbie    (19    C.   C.   704,   8 

C.  D.  589),  19. 


Ixviii 


TABLE    OF    CASES 


[References  are   to   pages.] 


Toledo  V.  Meinert    (15  C.  C.   [N.S.] 

545,  556),  119,  146,  311. 
Toledo   V.    Preston    (50   0.    S.    361), 

50n. 
Toledo    Ry.    v.     Rippon     (8    C.    C. 

[N.S.]    334,  18   C.   D.   561),   105, 

107. 
Toler  V.  State    (16  0.   S.  583),  165. 
Tolerton    v.     Robinson     (13     C.     C. 

[N.S.]    171,  23   C.  D.   179),  357. 
Tompkins  v.    Starr    (41    O.    S.   305), 

161. 
TopliflF  V.   Topliflf   (8   C.  C.  55,  4  C. 

D.  312),  506. 
Torpedo  Co.   v.   Fislibum    (61  O.   S. 

608),  408,  417,  442. 
Townsend   v.   Bank    (2   O.    S.   345), 

473,  501. 
Townsend   v.    State    (25    C.    D.    408, 

17   C.  C.    [N.S.]    380,  381),   121, 

167. 
Townsend    v.    Townsend    (25    O.    S. 

477),  503,506. 
Towsley    v.    Moore    (30    0.    S.    184 1, 

54. 
Traction    Co.   v.    Beebe    (3    0.    A  pp. 

213,   21   C.   C.    [N.S.]    513),  447. 
Traction   Co.    v.    Blackson,   6    C.    C. 

[N.S.]   233,  17  C.  D.  191),  29. 
Traction   Co.   v.   Burcli    (4  0.  L.  R. 

660,    17    O.    D.    730),    410,    441. 
Traction   Co.   v.   Dempsey    (9   N.   P. 

[N.S.]    65,   21   0.   D.   694),   127, 

317. 
Traction  Co.  v.  Dorenkemper  (13  C. 

C.  [N.S.]  97,  22  C.  D.  239),  151. 
Traction    Co.    v.    Drown     (7    C.    C. 

[N.S.]    549,  18  C.  D.  735),  447. 
Traction    Co.    v.   Durack    (78   O.    S. 

243),  129. 
Traction   Co.    v.    Forrest    (73    O.    S. 

1),  122. 
Traction  Co.  v.  Hackett   (6  0.  A  pp. 

97,   28   0.   C.    A.  566,   30   C.    D. 

208),  373,  374,  449,  482,  484. 


Traction    Co.    v.   Hanson    (16   C.   C. 

[N.S.]   296),  431. 
Traction  Co.  v.  Harrison    (24  C.   C. 

[N.S.]  1),  120. 
Traction  Co.  v.  Hart    (2  O.  App.  1, 

19    C.    C.    [N.S.]    71,   25    C.    D. 

347),   121. 
Traction  Co.  v.  Hatfield    (1  0.  App. 

354,  17  C.  C.   [N.S.]   350,  24  C. 

D.  378),  394. 
Traction  Co.  v.  Holzenkamp  (74   O. 

S.  379),  27,  42,  73,  105. 
Traction   Co.   v.   Hutchinson    (23   C. 

C.  [N.S.]  58),  317. 

Traction   Co.   v.   Jamison    (13   C.   C. 

[N.S.]    110,  22  C.  D.  .336),  271. 
Traction  Co.  v.  Jenkins   (3  O.  App. 

161,  19  C.  C.    [N.S.]   602,  26  C. 

D.  30),  294. 

Traction  Co.   v.   Jennings    (7  N.   P. 

[•N.S.]    462,   19  0.  D.  338),  312. 
Traction    Co.    v.    Kettler    (11    C.    C. 

[N.S.]    516,  21   C.   D.   170),  468. 
Traction   Co.    v.   Aloeller    (17   O.    0. 

22),  29. 
Traction  Co.  v.  Murphy    (6  O.  App. 

1,  28  0.  C.  A.  316,  30  C.  D.  82), 

107. 
Traction,  etc.,  Co.  v.  Peterson  (18  C. 

C.    [N.S.]   242),  211. 
Traction    Co.    v.    Riskey    (22    C.    C. 

[N.S.]    .301),  427. 
Traction  Co.  v.  Ruthman    (22  C.  D. 

353,   13   C.  C.    [N.S.]    161),   107. 
Traction  Co.   v.   Stephens    (75  0.   S. 

171),  400,  441. 
Traction    Co.    v.    Sterling    (9    C.    C. 

[N.S.]   200,   19  C.  D.  227),  294. 

455. 
Traction    Co.    v.    Ward     (6    C.     I 

[N.S.]   385,   17   C.  D.  761),   12" 

312,  446. 
Traction    Co.    v.    Wooley    (6    N.    1' 

[N.S.]   444,  17  O.  D.  19),  402. 
Tracy  v.  Coffey   (8  C.  C.   [N.S.]   88, 

18  C.  D.  579),  53. 


TABLE    OF    CASES 


Ixix 


[References  are  to   pages.] 


Transit  Co.  v.  Dagenbach   (11  C.  D. 

307),  44"),  446. 
Transit    Co.    v.    Stephenson    (12    C. 

D.   631),  292,  42S,   430. 
Treachvell  v.   Commissiojieis    (11  O. 

S.   183,   189),  2. 
Tremper    v.    Barton     (18    Oh.    418, 

423),  30. 
Treon   v.    Brown    (14  Oh.   482),  501. 
Treuhaft    v.     Dambach     (16    C.     C. 

[N.S.]  526,  25  C.  D.  570),  172. 
Trimble  v.  Longworth  (13  O.  S.  431, 

439),  513. 
Trone   v.   Assurance   Co.    (13  O.   D. 

298),  12. 
Trout  V.  iMarvin  (14  C.  D.  333,  2  C. 

C.    [X.S.]    523),  202. 
Truman  v.  Lore   (14  O.  S.  144),  433. 
Trust  Co.,  In  re  (1  O.  App.  409,  17 

C.  C.  [N.S.I  324,  24  C.  D.  381), 

529. 
Trust    Co.    V.    Campbell     (16    C.    C. 

[N.S.]  348),  41,  245. 
Trustees  v.  Odlin   (S  0.  S.  293,  207), 

138. 
Tucker  v.  Hendricks  (2  C.  C.  [N.S.] 

122,  15  C.  D.  426),  405. 
Tudcr   Co.  V.    Grecnwald    (16   C.  D. 

556,  5  C.  C.  [N.S.]  37,  39),  204. 
Tullis  V.  State  (39  O.  S.  200),  381. 
Turner,  In  re    (11   0.   D.  251,  8  N. 

r.  241),  301,  331,  386. 
Turr.cr  v.   State    (3  C.  D.  263,  5  C. 

C.  537),  99,   188,  298,  398, 
Turnpike  Co.  v.  Baily  (37  O.  R.  104), 

319,  320. 
Turnpike  Co.  v.  Cincinnati  (10  C.  D 

288,  19  C.  C.  607),  273. 
Turnpike    Co.    v.    Coover    (25    0.    S. 

558),  242. 
Turnpike    Co.    v.    Coover    (26    0.    S. 

520,  522),  388,  450. 
Turnpike    Co.    v.    Hester    (12    C.    C. 

.350,  5  C.  I).  090),  216,  311. 
Tuttle   V.   Burgett    (53   0.    S.   498), 

522,  560. 


'    Tuttle  V.  Furi  (22  C.  C.  [N.S.]  388, 
390),   138,  146,  201,  305. 

u 

I'mbenhauer  v.   State    (4  C.  C.  378, 

2  C.  D.  606),  283. 
Umbenhour  v.  Umbcnhour   (12  C.  C. 

[N.S.]    289,  21   C.  D.  317),  348. 
Union  Express  v.  Graliam   (26  O.  S. 

595),  61. 
Union  Mill  v.  Packard    (1  C.  C.  76, 

1  C.  D.  46),  305. 
United  Power  Co.  v.  Matheny  (81  O. 

S.  204),  261. 
Upthegrove  v.  State   (37  O.  S.   662, 

663),   188,  218,  219. 
Utter  V.  Hudnell   (7  A.  L.  R.  118,  6 

O.  D.  R.  621),  569. 


Vail   V.   McMillan    (17  O.    S.    617), 

526. 
Vairin  v.  Insurance  Co.  (10  Oh.  223, 

224),    467. 
Van   Arsdale    v.    Brown    (18    C.    C. 

52,  9   C.   D.  488),  546. 
Van  Camp  v.  Chenot    (20  C.  C.  708, 

10  C.  D.  819),  151. 
Vance  v.  Park   (8  C.  D.   425,  15  C. 

C.  713),  543. 
Van   Derveer   v.    Suti)liin    (5    0.    S. 

293),   181,   210,  211. 
Vanimmons  v.   State    (22  C.  C.  451, 

12  C.  D.  345),  167. 
Van    Ingen    v.    Peterson     (12    C.    C. 

[N.S.]    253,   21    C.    T).   .506),    69, 

239. 
Van  Zandt  v.  State   (13  C.  C.   [N.S.] 

■   526),  .304,  .309. 
Vanzant  v.  Davics    (6  O.  S.  52,  54), 

30. 
Varner  v.   Varnor    (16   C.   C.   386,  9 

C.  D.  273,  276),  23,  162,  321. 


Ixs 


TABLE    OF    CASES 


[References  are  to   pages.] 


Voight  Sons'  Co.  v.  Lafkin  (6  C.  D. 

124,  12  C.  C.  751),  245. 
Volk  V.  Westerville  (3  X.  P.  [N.S.] 

241,  17  0.  D.  776),  381. 
Volksblatt  Co.  v.  Hoffmeister  (62  O. 

S.  189,  198),  202. 
Voorhees  Co.  v.  Supply  Co.  (12  C.  C. 

[N.S.]    243,  21   C.  D.  557),  305, 

309,  532. 
Voss  V.  ISIurray    (50  0.   S.   19),  278. 
Vulgamore  v.  Vulgamore  (7  O.  App. 

374,  27   0.   C.  A.   136,  28   C.  D. 

229),  33. 

w 

Wade  V.  State   (2  C.  C.  [N.S.]   189, 

15  C.  D.  279),  222,  250,  251,  252, 

253,  264. 
Wagers  v.  Dickey  (17  Oli.  439),  229. 
Wagner  v.  Construction  Co.   (17  C. 

C.  [N.S.]  134),  134. 
Wagner  v.  Ziegler  (44  O.  S.  59),  105, 

135. 
Wainright    v.    Railway     (11    C.    D. 

530),  23. 
Waite  V.   State   (4  O.  App.  451,  23 

C.  C.  [N.S.]  455,  60),  335. 
Wald  V.  Bien   (14  N.  P.  [N.S.]   145, 

and  cases  cited),  554. 
Waldschmidt   v.   Bowland    (6   C.   C. 

[N.S.]   99,  17  C.  D.  782),  438. 
Wales  V.  Bates    (3  W.  L.  J.  263,  1 

0.  D.  R.  180),  531. 
Walker  v.  Devlin  (2  O.  S.  593),  IIS, 

263. 
Walker  v.  Scott   (29  O.  C.  A.  89,  7 

O.  App.  335,  338),  503. 
Walker  v.  Stetson  (14  O.  S.  89),  112, 

122. 
Wallace  v.  McMicken  (2  Dis.  564,  13 

0.  D.  R.  345),  7. 
Wallace   v.   Miner    (6   Oh.   366),   28, 

277. 
Walls    V.    Express    Co.     (19    N.    P. 

[N.S.]  156,  28  O.  D.  56),  61. 


Walrath  v.  Insurance   Co.    (9  C.  D. 

233,  16  C.  C.  413),  527,  567. 
Walsh  V.  Barton    (24  O.   S.  28),  53, 

465,  468,  472. 
Walsh   V.    Thomas    (91   O.    S.    210), 

112. 
Walsh  V.   Walsh    (18    C.    C.    [X.S.] 

91),  415,  432. 
Walter  v.  Bowling  Green   (16  C.  D. 

756,  5   C.   C.    [iSr.S.]    516,   526), 

214. 
Walters  v.  State  (39  0.  S.  215),  96. 
Waltha  V.   State    (14   C.   C.    [N.S.] 

145),  166. 
Walton  V.   Ensign    (6   C.   C.    [N.S.] 

300,  17  C.  D.  505),  63,  316. 
Ward,  In  re   (21  C.  C.  753,  12  C.  D. 

44),  89. 
Ward  V.  Barrows  (2  0.  S.  241,  247), 

28. 
Ward  V.  Railway    (16  C.   C.    [N.S.] 

594,  27  C.  D.  627),  215,  311. 
Ward  V.  Steel  Co.   (17  N.  P.   [N.S.] 

331,  26  0.  D.  569),  463. 
Ware   v.    Slocum    (26   C.    C.    [N.S.] 

317,  27  CD.  348),  321. 
Wareham   v.    State    (25   0.    S.    601, 

605),  315. 
Warner  v.  Lucas   (10  Oh.  G36),  385. 
Warner  v.  Railroad    (31  O.  S.  265), 

466,  502. 
Warner  v.   Railroad    (39  O.   S.   70), 

562. 
Warren  v.  Theater  Co.  (7  N.  P.  538, 

5  O.  D.  559),  24. 
Wasmer  v.  Rawlins    (iG  Bull.   147), 

226. 
Wass  V.   Trust  Co.    (15  O.  D.  677), 

136. 
Watson  V.  Brown  (14  Oh.  473,  479), 

155. 
Watson    V.    Lamb    (75    0.    S.   481), 

566. 
Watts,  In  re    (19  N.  P.   [N.S.]   225, 

27  0.   D.   87),  332. 


TABLE    OF    CASES 


Ixxi 


[References  are   to   pages.] 


Watts   V.    Shewell    (31    0.    S,   331). 

224,   225,   480. 
Waybriyht    v.    Bonncll     (20    N.    J'. 

[X.S.]  475,  2S  O.  D.  270),  80. 
Wayne  v.  The  General  Pike  (16  Oh. 

421),  534,  556,  557. 
Weaver    v.     Carnahan     (37     O.     S. 

363),  5. 
Weaver   v.   Kinjr    (12   C.    C.    [N.S.] 

129,  21  C.  D.  inO),  511. 
Weaver   v.    Linncman    (3   O.    L.    1\. 

424,  16  0.  D.  340),  101. 
Weaver  v.  State   (24  O.  S.  584),  09. 
Webb  V.   State    (29  O.   S.   351),   66, 

291,  384,  385,  399. 
Weber  v.  Lamp  Co,  (20  C.  C.  [N.S.] 

279),  546. 
Webster  v.  Harris  (16  Oh.  490),  502. 
Webster  v.  Paul  (10  O.  S.  531),  243, 

558. 
Wehrmann  v.  Beech   (7  C.  C.  [N.S.] 

367,  18  C.  D.  128),  361. 
Weitz  v.  Wenham    (6  C.  D.  563,  10 

C.  C.  348,  350),  12. 
Weingartner  v.  Railway   (3  0.  App. 

12,    21    C.    C.    [N.S.]    494),    135. 
Welker  v.  Toledo  (18  0.  S.  452,  455), 

51. 
ATellor  Co.  v.  Gordon  (7  C.  C.  [N.S.J 

303,  14  C.  D.  407),  77,  523. 
Weller  v.   State    (10   C.  D.   381,   19 

C.  C.   166),  lis,  119,  377. 
Wells  V.  Martin    (1  0.  S.  386),  457. 
Welsh  V.  Childs   (17  0.  S.  319),  47. 
Werner  v.  Cincinnati  (3  C.  C.  [N.S.] 

276,  13  C.  D.  475),  507. 
Wertz  V.  Eailroad  (11  O.  D.  804,  .30 

Bull.  280),  514. 
West    v.    Knoppenberger    (4    C.    C. 

[N.S.]    305,  16  C.   D.    168),   103, 

104,  412,  413,  434. 
Westenhaver  v.   Hoytville    (8    C.    C. 

[N.S.]   284,  18  C.  D.  .357),   109. 
Westerman  v.  Westerman   (25  O.  S. 

500),  309,  346,  347. 


Westlake    v.    Westlake     (34    0.    S. 

621),   267. 
Westwater    v.    Pool    Co.    (12    C.    C. 

[N.S.]   3S2,  22  C.  D.  121),  296, 

523. 
Wetmore  v.  Mcll   (1  0.  S.  26),  262. 
Wettstein  v.  Bank   (20  C.  C.   [N.S.] 

201),  547. 
Weybriolit  v.  Fleming  (40  O.  S.  52), 

118. 
Whalen   v.    State    (12   C.   C.   584,  5 

C.   D.  488),  349,  500. 
Wheeler    v.    State    (34    0.    S.    394), 

46,  98,  161,  417,  519. 
Whelan   v.   Kinsley    (26  O.   S.    131), 

132,  296,  490. 
^^^litcomb    V.    State     (14    Oh.    28"^, 

285),  194. 
White    V.    Herndon    (15    C.    C.    290, 

8  C.  D.  292),  6. 
White  V.   Perrine    (1   W.  L.  J.   397, 

1  O.  D.  R.  58),  520. 
White  V.   Smythe    (24  C.   C.    [N.S.] 

225,  27  C.  D.  489),  316. 
White  V.  Tucker  (16  0.  S.  468),  210, 

404. 
Whiting-  V.    State    (48    0.    S.    220), 

21,  117,   131,  334. 
Whitman    v.    Keith     (IS    0.    S.    134, 

149),  297,  298. 
Whitman   v.  State    (7   C.  C.    [N.S.] 

.334,  17   C.  D.   735),  507. 
Whitney  v.  Denton    (3  Bull.  870,  7 

0.  b.  R.  .547),  85. 
Whitney  v.  Roth  (45  Bull.  374),  161. 
Wiborg  v.  Pfeifer   (S  N.  P.  273,  11 

O.  1).  428),  417. 
Wick  v.  Baldwin  (51   O.  S.  51),  385. 
Wicker  v.  Messinger   (22  C.  C.  712, 

12  C.  D.  425),   143. 
Wickham  v.  Coyner  (12  C.  C.  [N.S.I 

433,  20  C.  f).  765),  45. 
Wilhelm  v.   Parker   (9  C.  1).  724,  17 

C.  C.  234),  18,  488,  489. 
Williams,  In  re  (25  C.  C.  [N.S.I  249, 

5  O.  A  1)1).  55,  27  C.  D.  385),  37. 


Ixxii 


TABLE    OF    CASES 
[References  are  to   pages.] 


Williams  v.  Barker  (4  N.  P.   [N.S.] 

596,  17  O.  D.  679),  400. 
Williams  v.  Brown   (28  O.  S.  547  >, 

411,  412,  441. 
Williams    v.    Burnet     (Wright    53), 

276. 
Williams  v.  Finlay   (40  0.  S.  342), 

489. 
Williams  v.  Lederer  (18  C.  C.  [N.S.] 

515,  517),  146. 
Williams    v.    Lockoman    (46    O.    S. 

416),  318. 
Williams   v.   Longley    (3   C.  C.  508, 

2  C.   D.   292),  353,  355,  362. 
Williams    v.   Mears    (4   Gaz.   293,  2 

Dis.  604),  277. 
Williams   v.    Salem    (33   Bull.   148), 

316. 
Williams  v.  Spriggs    (6  0.   S.  585), 

19.5. 
Williams  v.  State  (Wright  42),  383. 
Williams  v.  State   (14  Oh.  222),  29, 

95. 
Williams  v.   State   (11  C.  C.   [N.S.] 

4,  20  C.  D.   342),  254,  340. 
Williams   v.   Stearns    (59  O.   S.   28, 

36),   263,  269. 
Williams  v.  Swift  (6  Bull.  722,  8  O. 

D.  R.  258),  567. 
Williams  v.  Van  Tuyl  (2  O.  S.  337), 

543. 
Williams  v.  Williams    (3  W.  L.  M. 

258,  2   0.  D.   R.  478),  526,  537, 

538. 
Williamson  v.  Carskadden  (36  O.  S. 

664),   501. 
Williamson  v.   Hall    (1  O.   S.   190), 

527. 
Willinger  v.  Bramsche   (3  C.  D.  731, 

7  C.  C.  208),  108. 
Willis  V.  Baker    (75  O.  S.  291),  83. 
Wilmot  V.  Lyon   (7  C.  D.  394,  11  C. 

C.  238),  25,  197,  268,  270. 
Wilson  V.  Bailey    (1  Handy  177,  12 

O.  D.  R.  88),  532,  564. 


Wilson  V.  Barkalow   (11  O.  S.  470), 

153,  156,  158,  215,  293,  311. 
Wilson   V.    Brown    (12    C.    D.    719), 

119. 
Wilson  V.  Giddings    (28  O.   S.  554), 

20,  550. 
Wilson  V.  Goodin  (Wriglit  219),  480. 
Wilson  V.  Wilson  (17  0.  S.  150),  40. 
Wilson   V.   Wilson    (8   0.   App.   258, 

28  0.  C.  A.  309,  29  C.  D.  393), 

489. 
Winder  v.   Seholey    (83  O.   S.   204), 

280,  543. 
Winthrop  v.  Grimes    (Wright   330), 

485. 
Wisby  V.  Bonte  (19  O.  S.  238,  247), 

11. 
Wiswell  V.  Church  (14  O.  S.  31),  11. 
Wolcott  V.  Holland   (17  C.  D.  71,  5 

C.  C.  [X.S.]    604,  610),  39. 
Wolf   V.    Menager    (14   O.   D.    128), 

485,  515. 
Wolf  V.  Powner  (30  .0.  S.  472),  340, 

353,  366. 
Wolverton    v.    State    (16    Oh.    173), 

234,  500. 
Wood  V.   Perry    (Wright  240),  534. 
Woodbury   v.    Bollmeyer    (20   C.   C. 

[N.S.]  113),  59,  347. 
Wood    Co.    V.    Shinnew     (10    C.    C. 

[N.S.]    554,  20  C.  D.   1.58),  318. 
Woodruff  V.  Montgomery   (11  C.  C. 

[N.S.]    72,   20   C.  D.  426),  239. 
Woods   V.    Altschul    (12   C.  D.   800, 

22  C.  C.  560),  331. 
Woodward  v.  Sloan   (27  O.  S.  592), 

151. 
Woodworth,  In  re    (6  O.  D.   19,  29 

Bull.  315),  330. 
Woolworth  V.  Brinker  (11  0.  S.  593, 

■597),  510. 
Work   V.   Corrington    (34    O.    S.   64, 

75),  15. 
Worman  v.  Teagarden  (2  O.  S.  380), 

528,  561. 
Worth  V.  Wilson  (Wright  162),  554. 


TABLE    OF   CASES 


Ixxiii 


[References  are  to   pages.] 


Worthington   v.    Railway    (9    C.   C. 

[N.S.]   433,  19  C.  D.  321),  268, 

273. 
Wrede  v.  Richardson  (77  O.  S.  182), 

492. 
Wrede  v.  Steinkamp    (1  N.  T.   192, 

2  O.  D.  198),  236. 
Wrentmore  v.  Wrentmore  (17  C.  C. 

[N.S.]    81),  509. 
Wright  V.  Gill  (12  O.  D.  12),  32. 
Wright  V.  Hull   (83  0.  S.  385),  31. 

73,  77,  467. 
Wright   V,   Merchant    (5   W.   L.   U. 

194,  2  O.  D.  R.   742),  540. 
Wroe  V.   State    (20   O.   S.   460),  21, 

187,   223,  224,   304,   382. 
Wuest  V.  Railway   (5  C.  C.    [N.S.] 

619,  17  C.  D.  365),  125. 
Wylie  V.  King  (18  C.  C.  [N.S.]  304), 

68. 
Wymond  Co.  v.  Thompson   (8  N.  P. 

347,  11  O.  D.  487),  173,  225. 


Yager  v.  Greiss    (1   C.  D.  296,  1  C. 

C.  531),  3^6. 
Youmans  v.   Caldwell   (4  O,  S.  71), 

506,  568, 


Younce  v.  Flory  (77  O.  S.  71),  528. 
Young  V.  Buckingham   (5  Oh.  485), 

516. 
Young    V.   Clark    (13    C.   C.    [N.S.] 

284,  22  C.  D.  374),  108. 
Young    V.    Langdon    (12    Bull.    246, 

9  0.  D.  R.  367),  352. 
Young  V.   State    (23   0.   S.  577),   9. 
Young  V.  State   (16  C.  D.  747,  6  C. 

C.   [N.S.]   53,  56),  249,  303. 
Youngs  V.  Heffner  (36  0.  S.  232),  33. 
Youngstown  v.  Moore  (30  O.  S.  133), 

274. 


Zackman  v.  Dick    (15  C.   C.    [N.S.] 

593,  24  C.  D.  450),  529. 
Zeltner   v.    State    (13    C.    C.    [X.S.; 

417,  22  C.  D.  102),  167,  175,  187, 

299,  376. 
Zieverink  v.  Kemper  (50  O.  S.  208), 

468. 
Zimmerman  v.  Grotenkemper    (6  O. 

D.   R.   832,  8   A.   L.   Rec.   364), 

327. 
Zuekerman  v.  State  (24  C.  C.  [N.S.] 

404),  197. 


CHAPTER  I. 
JUDICIAL  ADMISSIONS. 

1.  Issues  made  by  denials. 

2.  Admissions    in   i)lcadings. 

3.  Admissions  and   denials. 

4.  Material   allegations. 

5.  Averments  as  to   value. 

6.  Judgment   by   default. 

7.  Admissions  generally  binding. 

8.  Parties  not  bound. 

9.  Admissions   in  other  cases. 

10.  Admissions   outside   pleadings — Forms. 

11.  Agreed  statement  of  facts. 

12.  Agreements  as  to  certain  facts. 

13.  Oral  admissions  by  party. 

14.  Oral   admissions  by  attorney. 

1.  ISSUES  MADE  BY  DENIALS. 

(a)  In  civil  actions,  courts  do  not  hear  evidence  until  it  has 
been  determined  what  ultimate  facts  are  in  issue.  An  issue  of 
fact  arises  (1)  upon  a  material  allegation  in  the  petition  denied 
by  the  answer,  (2)  upon  a  set-off,  counterclaim,  or  new  matter 
presented  in  the ,  answer  and  denied  by  the  reply,  (3)  upon 
material  new  matter  in  the  reply,  which  is  to  be  considered  as 
controverted  by  the  adverse  party  without  further  pleading. 

See  Section  11378,  General  Code. 

(b)  In  order  to  put  plaintiff  upon  proof  of  a  material  aver- 
ment in  his  petition,  the  defendant  must  in  some  form  deny  its 
truth.  "Where  the  answer  to  such  averment  states  merely  that 
defendant  does  not  admit,  the  plaintiff  can  not  be  required  to 
offer  evidence  in  regard  to  it.  And  when  an  answer  calls  for 
proof  because  defendant  can  not  state  whether  or  not  a  matter 
is  true,  it  is  not  a  proper  denial.  The  code  requires  a  denial ; 
and  a  call  for  proof  can  not  be  regarded,  in  form  or  substance, 
as  the  denial  contemplated  by  the  code.  And  an  averment  in  a 
reply  that  the  pleader  can  not  admit  or  deny  the  allegations 

1 

metzler'.s  trial  k\\ — 1 


§2  METZLER'S   OHIO   TRIAL    EVIDENCE  2 

of  the  answer,  but  demands  proof  thereof,  is  no  traverse  of 
the  facts  so  alleged.  And  the  defendant  in  such  case  will  not  be 
called  on  to  adduce  evidence  of  the  truth  of  his  averments. 

Boniberger  v.  Turner,  13  0.  S.  263. 
Bentley  v.  Dorcas,  11  0.  S.  398,  409. 
Building  Assn.  v.  Clark,  43  0.   S.  427. 

(c)  A  want  of  belief  is  sufficient  to  authorize  a  denial  of  an 
allegation ;  and  it  is  not  improper  to  accompany  the  denial  with 
a  statement  that  the  party  making  it  has  no  knowledge  or  in- 
formation on  which  to  form  a  belief.  But  a  denial  for  want  of 
knowledge,  where  it  refers  to  a  public  record,  is  insufficient  to 
put  the  opposite  party  on  his  proof. 

Treadwell  v.  Commissioners,   11  0.  S.   183,   189. 

Dennis  v.  Landretli,   15  C.  C.    (X.S.)    1.19,  22  C.  D.  678. 

Cf.  Lieblang  v.  Kailway,  4  C.  C.    (X.S.)   516,  16  C.  D.  30. 

2.  ADMISSIONS  IN  PLEADINGS. 

(a)  In  a  pleading,  facts  may  be  judicially  admitted  in  two 
ways:  (1)  by  admitting  specifically,  and  (2)  by  failure  to  deny. 
For  the  purposes  of  an  action,  every  material  allegation  of  a 
petition  not  controverted  by  the  answer,  and  every  material 
allegation  of  new  matter  in  an  answer  not  controverted  by  the 
reply,  shall  be  taken  as  true.  New  matter  alleged  in  a  reply 
shall  be  deemed  controverted  by  the  adverse  party  as  upon  a 
denial  or  avoidance,  as  the  case  may  require. 

See   Section   11329,  General   Code. 
State,  ex  rel.,  v.  Hawcs,  43   0.   S.   16. 
Titus  V.  LeAvis,  33  0.  S.  304. 
FewRter  v.  Goddard,  25  0.  S.  276. 
Edwards  v.   Edwards,  24  0.   S.  402. 
Rader  v.  Baseli,  IS  C.  C.    (X.S.)   23. 

(b)  But  when  the  legal  effect  of  the  allegations  in  an  answer 
is  a  mere  denial  of  the  averments  in  the  i^etition,  such  allega- 
tions can  not  be  regarded  as  new  matter,  which  will  be  taken 
as  true  unless  controverted  by  reply.  In  other  words,  facts 
stated  in  an  answer  which  could  have  been  given  in  evidence 
under  a  denial  of  the  averments  in  the  petition,  do  not  constitute 
new  matter  requiring  a  reply. 

Insurance  Co.   v.   Kelly,  24   0.   S.   345. 
Corry  v.  Campbell,  25  O.  S.  134. 


3  JUDICIAL    ADMISSIONS  §4 

3.  ADMISSIONS  AND  DENIALS. 

(a)  If  a  party  admits  certain  facts,  but  denies  all  other  alle- 
gations in  his  opponent 's  pleading,  the  denial  applies  only  to  the 
allegations  not  included  in  the  admissions.  And  if  a  party 
selects  one  averment  and  denies  that  only,  he  admits  all  other 
material  averments. 

Stephenson  v.  Leesburgh,  33  0.  S.  475. 

Everett  v.  Waymire,  30  0.  S.  308. 

Layman   v.  Brown,   12  0.  D.  R.  406,   1   Dis.  7"),  77. 

(b)  A  general  denial  of  the  allegations  of  a  petition  is  un- 
availing when  it  is  inconsistent  with  the  express  admissions  of 
the  answer.  In  order  to  determine  the  effect  of  any  of  the 
allegations  of  a  pleading,  all  the  allegations  should  be  considered. 

Reiff  V.  Mulhollajid,  65  0.   S.   178. 

(c)  When  a  conceded  material  fact  in  a  pleading  is  inconsis- 
tent with  a  general  allegation  in  the  same  pleading,  such  con- 
ceded fact  must  prevail.  As  both  can  not  be  true,  the  general 
allegation  will  be  disregarded.  It  is  a  rule  that  a  pleading 
containing  inconsistent  statements  should  be  construed  against 
the  pleader. 

State,  ex  rel.,  v.  Lewis,  64  O.  S.  216,  234. 
Mechanics'  Assn.  v.  O'Comier,  29  0.  S.  651,  654, 

(d)  Where  an  averment  of  a  petition  is  admitted  by  one 
defendant  and  denied  by  another,  there  is  no  issue  on  that  point 
between  the  plaintiff  and  the  one,  but  there  is  an  issue  between 
the  plaintiff  and  the  other.  So  wliere  one  defendant  is  alleged 
to  have  dug  a  hole  in  a  street  and  left  it  unlighted,  and  another 
defendant  is  alleged  to  have  negligently  driven  plaintiff  into 
the  hole,  the  latter  defendant  who  has  admitted  the  averment 
that  there  was  no  light  to  warn  him,  is  entitled  to  its  benefit, 
although  the  other  defendant  has  shown  that  there  was  a  light. 

Fisher  v.  Tryon,  15  C.  C.  541,  8  C.  D.  556,  564. 

4.  MATERIAL  ALLEGATIONS. 

(a)  The  allegations  of  a  pleading  that  are  to  be  taken  as 
true,   if  not  denied,   are  material   allegations   of   fact;   that  is, 


§5  METZLER'S    OHIO    TRIAL    EVIDENCE  4 

these  which  could  not  be  stricken  out  of  the  pleading  without 

leaving  il   insufficient. 

Railroad  v.   Wilson,   31    0.   S.   555,  560. 
Section   11330,   General   Code. 

(b)  There  are  at  least  four  kinds  of  allegations  which  need 
not  be  denied: — 

(1)  An  averment  of  legal  conclusions.  This  tenders  an  im- 
material issue,  and  is  not  to  be  taben  as  true  though  the  adverse 
party  fails  to  deny  it. 

■  Railroad  v.  Wilson,  31  0.  S.   55.5,   560. 
Cf.  Bank  v.  Lloyd,  18  0.  S.  353. 
State,  ex  rcl.,  v.   ArcIiibaM,  52  O.  S.   1. 

(2)  Neither  presumptions  of  law  nor  matters  of  which  judi- 
cial notice  is  taben,  need  be  stated  in  a  pleading. 

Section   11331,  General  Code. 

State,  ex  rol.,  v.   Smith,   44   0.   S.  348,   302. 

(3)  A  copy  of  a  writing  attaclied  to  a  pleading  but  not  made 

a  part  thereof. 

Leedle  v.  Christie,   15   C.  C.    (X.S.I    3S5.  24  C.  D.  572. 
See  also  McEwing  v.  James,  36  0.  S.  152,  153. 
Construction  Co.  v.  Lakewood,  17  C.  C.    (N.S.)    165. 

(4)  Averments  r.s  to  vabae  or  the  amount  of  damage. 
Section  11329,   General  Code. 

5.  AVERMENTS  AS  TO  VALUE. 

(a)  In  an  action  the  cause  whereof  is  not  founded  on  con- 
tract, express  or  implied,  the  verification  of  the  petition  does 
net  prima  facie  embrace  or  determine  the  amount  of  the  re- 
covery ;  and  it  is  error  to  enter  judgment  thereon  without  evi- 
dence of  amount  or  value.  The  verification  of  the  pleading  does 
not  apply  to  the  amount  claimed  except  in  actions  founded  on 
contract,  express  or  implied,  for  the  payment  of  money  only. 

Pollock  V.  Pollock,  2  C.  C.  143,  1  C.  D.  410. 
Keck  V.  JenTiev,  1   Clcv.   L.  R.  90,   4  0.  D.  R.   173. 
Section   11357,  General  Code. 
See  Smith  v.  Machine  Co.,  26  O.  S.  562. 
Chambers  v.  Frazier,  29  0.  S.  362. 

(b)  B;it  in  an  action  on  an  account,  the  allegation  of  the 
amount  due  is  a  material  allegation,  and  not  an  allegation  of 


5  JUDICIAL    ADMISSIONS  §  6 

value  or  damage  which  need  not  be  denied ;  and  if  not  denied 
by  the  answer,  judgment  may  be  rendered  for  the  amount  with- 
out proof  of  value.  And  in  an  action  on  an  implied  contract 
for  money  only,  as  for  money  had  and  received,  judgment  may 
be  rendered  without  proof  of  the  amount. 

Dallas  V.  Fernoau,  25  0.  S.  635,  638. 
Railroad  v.  Walker,  45  0.  S.  577,  582. 
K.  B.  Co.  V.  Dixon,   19  C.  C.    (X.S.)    196. 

6.  JUDGMENT  BY  DEFAULT. 

(a)  "Wlien  all  or  a  part  of  one  or  more  of  the  causes  of 
action  set  out  in  a  pleading  are  not  put  in  issue  by  answer,  or 
otherwise,  judgment  may  be  taken,  as  upon  a  default,  for  so 
much  of  the  demand  as  is  not  in  issue,  on  any  or  all  of  the 
causes  alleged,  without  prejudice  to  the  rights  of  the  pleader 
as  to  that  portion  of  his  demand  which  is  disputed. 

Section   11592,   General  Code. 

(!:)  Vv'here  a  defendant  admits  the  amount  of  his  indebted- 
ness to  the  plaintiff  and  pleads  a  set-off,  and  issue  is  joined  on 
the  set-off,  a  judgment  rendered  upon  the  pleadln;;s,  on  the 
motion  of  the  plaintiff,  for  the  amount  admitted  to  be  due,  less 
the  amount  of  the  set-off,  is  not  erroneous. 

Beneon  v.  Stein,  34  0.  S.  294. 

(c)  Where  the  defendant  in  an  action  for  the  price  of  goods 
sold  sets  up  in  his  answer  and  as  his  only  defense  that  the 
goods  were  sold  by  sample  and  were  inferior  to  the  sample  to 
a  .specified  amount,  the  court  is  authorized  to  render  judgment 
for  the  amount  .so  admitted  to  be  due,  and  continue  the  cause 
as  to  the  counterclaim  or  amount  in   dispute. 

Moore  v.  Woodside,  26  0.  S.  537. 

(d)  But  where  plaintiff  sues  to  recover  the  value  of  services 
rendered,  and  the  defendant  admits  the  rendition  of  the  serv- 
ices, but  denies  the  value  to  be  as  great  as  claimed,  and  avers 
that  it  does  not  exceed  a  certain  specified  amount,  it  is  error 
to  render  a  judgment  in  plaintiff's  favor  for  such  amount,  and 
continue  the  cause  for  trial  to  determine  the  further  value  of 
such  services. 

Weaver  v.  Camalian,  37   0.   S.  363. 

Roos  V.  .Sykes,  14  X.  P.   (X.S.)   367. 

Snell  V.  Banks  Co.,   16  C.  C.    (X.S.)    32,  27  C.  D.  323. 


§  7  METZLER'S    OHIO    TRIAL    EVIDENCE  6 

(e)  Where  a  cause  of  action  is  on  an  entire  demand  and 
the  whole  of  the  claim  is  disputed,  judgment  should  not  be  ren- 
dered for  a.j)art  of  the  claim.  And  where  the  plaintiff  sets  up 
two  causes  of  action,  and  several  defenses  denominated  counter- 
claims are  set  up  to  the  second  cause  of  action,  it  is  error  for  the 
court  to  render  judgment  on  the  first  cause  of  action  if  the 
answer  is  a  complete  defense  to  both  causes  of  action.  The 
real  nature  and  character  of  a  pleading  should  govern. 

White  V.  Herndon,  15  C.  C.  290,  8  C.  D.  292. 
Hathaway  v.  Gordon,  9  C.  C.  8,  6  C.  D.  39. 

7.  ADMISSIONS  GENERALLY  BINDING. 

(a)  It  is  a  well-settled  rule  that  parties  are  bound  by  their 
written  admissions  made  in  the  progress  of  a  cause  as  a  sub- 
stitute for  evidence  of  any  material  fact,  and  can  not  at  pleasure 
repudiate  them  by  amendment.  Amendments  to  pleadings  sought 
to  be  made  out  of  rule  should  be  allowed  only  in  furtherance 
of  justice. 

Archdeacon  v.  Gas  Co.,  76  0.  S.  97. 
Iron  Co.  V.  Harper,  41  0.   S.   100,   105. 

(b)  After  a  case  has  been  pending  for  such  time  that  it 
would  be  too  late  to  commence  another  action,  the  defendant 
should  not  be  permitted  to  retract  an  admission  by  amend- 
ment for  the  purpose  of  interposing  the  defense  of  the  bar  of 
the  statute.  Even  if  amendment  should  be  permitted,  it  would 
leave  in  force  the  admission  of  the  original  answer. 

Archdeacon  v.  Gas  Co.,  76  0.  S.  97,  105. 

(c)  Part  of  an  answer  of  a  corporation  containing  among 
other  things  an  admission  of  its  incorporation,  was  stricken  out 
on  plaintiff's  motion,  which  left  in  a  denial  of  everything  not 
therein  admitted.  It  was  held  that  plaintiff  might  read  in  evi- 
dence to  the  jury  such  admission  in  the  original  answer. 

Iron  Co.  V.  Harper,  41  O.   S.   100. 

(d)  An  answer  filed  in  a  libel  suit  was  a  plea  of  justifica- 
tion as  broad  as  the  libel  itself  and  was  on  file  for  a  year,  and 
permission  was  then  given  to  withdraw  it.  The  withdrawal  did 
not  destroy  its  competency  as  evidence  of  a  republication  of  the 
libel  and  as  tending  to  prove  malice. 

Puhlishing  Co.  v.  Valentine,  9  C.  C.  387,  6  C.  D.  323. 


7  JUDICIAL    ADMISSIONS  §  8 

(e)  Admissions  of  a  receiver  in  a  pleading  and  of  an  at- 
torney in  an  affidavit  in  support  of  a  motion  are  admissible  in 
the  same  cause  if  within  the  scope  of  their  authority ;  and  the 
authority  of  the  attorney  is  to  be  presumed  from  his  appearance 
as  such  in  the  case,  until  the  contrary  affirmatively  appears. 

Abrazonine  Co.  v.  Ceramic  Co.,   17  C.  C.    (X.S.)    209. 

(f)  The  pleading  of  a  party  is  not  admissible  in  evidence 
on  the  trial  to  prove  its  allegations;  but  the  pleading  of  one 
party  may  be  introduced  by  his  adversary  to  prove  admissions 
or  to  impeach  statements  made  on  the  trial. 

Railway  v.  Helber,  91  0.  S.  231. 

(g)  An  averment  in  the  nature  of  an  admission  is  not  con- 
elusive  during  the  trial,  Avhen  it  is  obviously  a  mistake  and 
there  is  no  element  of  estoppel  in  the  admission.  But  after 
judgment,  the  allegations  of  a  party  in  his  pleadings  in  the 
case  are  to  be  taken  as  conclusive  against  him.  A  judgment 
can  not  be  affected  by  an  assertion  that  an  admission  in  a 
pleading  was  made  under  a  mistake. 

Rhodes  v.  Mooney,  43  0.  S.  421,  426. 

Bates,   Pleading   and    Practice,   p.   563. 

Fisher  v.  Tryon,  8  C.  D.  556,  15  C.  C.  548. 

Benson  v.  Stein,  34  0.  S.  204,  299. 

Wallace  v.   McMicken,  2  Dis.   564,   13   0.   D.   Pv.   345. 

(h)  If  a  fact  is  admitted  by  the  pleadings  and  no  evidence 
is  offered  to  disprove  the  fact,  it  is  error  for  the  court,  when 
special  findings  are  requested,  to  state  the  fact  contrary  to 
the  admission.  And  an  admission  in  the  pleadings  must  pre- 
vail over  a  finding  to  the  contrary  by  the  jury. 

Oliver  v.  Moore,  23  0.  S.  473. 

Harris  v.  Oil  Co.,  57  0.  S.  IIS,  125. 

Cincinnati  v.  Johnson,   7   C.   C.    (X.S.)    167,   18   C.   D.    377. 


8.  PARTIES  NOT  BOUND. 

(a)  The  answer  of  a  guardian  of  an  infant,  or  of  a  person 
of  unsound  mind,  or  of  an  attorney  for  a  person  in  prison, 
shall    deny   all    the   material    allegations   of   the   petition    pre- 


§9  IViETZLERS   OHIO    TRIAL    EVIDENCE  8 

judicial  to  such  defendant.     Neither  an  express  admission  in 
the  answer  nor  a  failure  to  deny  will  avail  plaintiff. 

Section   11322,  General  Code. 

Long  V.  Miilford,   17  O.  S.  484,  od". 

Randall  v.  Turner,  17  0.  S.  -C-. 

(b)  Officers  can  not  bind  tliemselves  .or  tiie  public  by  an 
admission  in  their  ans\,  er  that  a  mistake  was  made  ni  a  bid 
not  apparent  on  its  face,  as  this  would  be  a  plain  violation  of 
the  statute.  And  where  the  auditor  has  not  the  power  to  fix 
the  sum  for  which  the  county  is  to  be  chary'eable,  he  can  not, 
by  any  admission  in  a  proceedin<>-  by  mandamus,  bind  the 
county  in  reference  to  the  amount  of  liability. 
.  Beaver  v.  Elind  Asylr.m,  19  0.  S.  07,  inq. 
Putnam  Co.  v.  Auditor,   1  0.   S.  322. 

9.  ADMISSIONS  IN  OTHER  CASES. 

(a)  An  express  admission  of  a  fact  in  the  pleadings  in 
one  action  may  be  admitted  in  evidence  in  another  action  on 
the  same  subject  against  the  party  making  it.  An  admission 
that  the  defendant  holds  the  title  of  land  in  trust  to  ])ay  cer- 
tain debts  of  the  grantor  and  to  support  his  wife  and  child  as 
far  as  necessary,  was  held  to  be  admissible  to  prove  the  trust, 
notwithstanding  the  admission  was  made  in  an  answer  in  a 
former  case  brought  by  other  parties. 

Earl  V.   Shoulder,  6  Oh.   400. 

Railroad  v.  Cleveland,   15  C.   C.    (X.S.)    lOH,  23  C.  D.  4S2. 

Broadrup  v.  Woodman,  27   0.   S.  5.53. 

See  Maloney  v.  IMaloney,  4  C.  D.  25.^,  12  C.  C.  700. 

Steen   v.   Friend,   11    C.   D.   235,   20   C.   C.   4.50. 

(b)  However,  an  admission  contained  in  the  pleadings  of 
a  part.v  does  not  estop  him  from  asserting  the  truth  in  a  sub- 
sequent action,  if  such  admission  was  not  material  to  the  mat- 
ters adjudicated  in  the  former  suit.  An  admission  is  not  con- 
clusive when  it  is  obviously  a  mistake  and  the  other  side  has 
not  been  misled. 

Crofton  V.   Board  of  Edneation,  2fi  0.  S.   571. 
Rhodes  v.  Mooney,   43  O.   S.   421.   426. 

(c)  A  pleading  verified  as  required  by  statute  shall  not  be 
used  against  a  party  in  a  criminal  prpsecution  or  action,  or 


9  JUDICIAL   ADMISSIONS  §  10 

proceeding  for  a  penalty  or  forfeiture,  as  proof  of  a  fact  ad- 
mitted or  alleged  in  such  pleading.  But  a  plea  of  guilty  in  a 
criminal  prosecution  is  admissible  against  the  party  in  a  civil 
action,  though  not  conclusive.  Such  plea  stands  like  any  other 
confession  of  a  party  and  may  be  controverted. 

See  Section  11359,  General  Code. 
Clark  V.  Irviii,  9  Oh.  131. 

10.  ADMISSIONS  OUTSIDE  PLEADIMGS— FORMS. 

(a)  Aside  from  the  admissions  of  the  pleadings,  there  are 
four  methods  of  dispensing  Avith  evidence  by  judicial  admis- 
sions:  (1)  by  an  agreed  case,  (2)  by  an  agreed  statement  of 
facts,  (3)  by  an  agreement  as  to  certain  facts,  and  (4)  by  oral 
admission  in  open  court.  The  first  and  second  dispense  with 
all  evidence;  the  other  two  dispense  with  evidence  as  to  cer- 
tain facts.    All  are  written  stipulations  except  the  last. 

(b)  The  principal  distinction  between  an  agreed  case  and 
the  other  three  methods,  is  that  it  dispenses  with  both  plead- 
ings and  evidence ;  whereas  the  others  dispense  with  evidence 
only.  Another  distinction  is  that  when  an  agreed  ease  is  re- 
viewed on  error,  the  case,  the  submission,  and  the  judgment 
will  constitute  the  record  ;  whereas  the  other  agreements  must, 
in  order  to  be  reviewed,  be  made  a  part  of  the  record. 

Phillips,  Code  Pleading,  Section  514. 
Sections  11472  et  scq..  General  Code. 
Brown  v.   Mott,   22  O.   S.   149. 

(c)  An  agreed  statement  of  facts,  although  in  writing  and 
signed  by  counsel  of  all  parties,  and  filed,  does  not  become  a 
part  of  the  record  unless  it  is  brought  upon  the  record  by  a 
bill  of  exceptions ;  or  unless  the  facts  as  agreed  upon  are 
stated  in  the  journal  entry  as  the  court's  finding  of  facts. 

Goyert  v.  Eicher,  70  0.  S.  30. 

Telephone  Co.  v.  Telephone  Co.,  91   0.  S.   398. 

Young  V.  State,  23  0.  S.  577. 

Oil  Co.  V.  Inn  is,  12  C.  C.   (X.S.)    223,  18  C.  D.  778. 

Darling  v.  Ilippel,  12  C.  D.   754. 

(d)  The  rule  is  similar  in  regard  to  agreements  as  to  cer- 
tain facts  and  oral  admissions  made  during  the  trial.  It  is 
not  proper  for   the   court   to   enter  upon   the   journal   that   a 


§  11  METZLER'S    OHIO    TRIAL    EVIDENCE  10 

party  has  admitted   certain  facts.     The   admission  should   be 
made  a  part  of  the  bill  of  exceptions. 

Challen  v.  Cincinnati,  40  0.  S.  113. 

Cf.  Fath  Co.  V.  Bausmerth,   15  C.  C.    (N.S.)    150,  23  C.  D.  382. 

(e)  It  is  not  error  for  the  court,  while  charging  the  jury, 
to  repeat  to  them  the  statement  of  a  witness,  and  to  inform 
them,  where  such  is  the  fact,  that  counsel  on  both  sides  ad- 
mit the  truth  of  the  statement.  The  fact  that  such  admission 
was  made  by  counsel  Avill  be  presumed  where  the  contrary  is 
not  shown  by  the  record. 

Bond  V.   State,  23  0.   S.   340. 

Eailvvay  v.  Hudson,  22  C.  C.  586,   12   C.  D.   661. 

11.  AGREED  STATEMENT  OF  FACTS. 

(a)  It  has  long  been  the  practice  in  this  state  for  counsel 
to  agree  upon  the  facts,  reduce  the  agreement  to  w^riting,  and 
file  it  in  the  case,  instead  of  going  to  the  trouble  and  expense 
of  taking  proof  by  deposition  or  otherwise.  And  when  such 
agreement  is  reduced  to  writing  and  signed  by  the  parties  or 
their  counsel,  and  when  the  case  has  been  submitted  upon  such 
agreed  statement  of  facts,  the  statement  can  not  be  withdrawn 
or  the  agreement  retracted  by  either  party  except  by  leave  of 
court  on  cause  shown. 

Tsh  V.  Crane,  13  0.  S.  574.  579. 

(b)  In  ease  an  agreed  statement  has  been  made  and  filed 
by  mistake  or  misapi')rehension  of  the  existing  state  of  facts 
by  one  of  the  parties,  he  may  consistently  with  fair  practice 
and  upon  notice  to  the  adverse  party  or  his  counsel,  apply  to 
tlie  court  for  leave  to  withdraw  from  the  files  such  agreed 
statement,  or  such  part  tliereof  as  is,  in  fact,  untrue.  And 
upon  the  merits  of  such  motion  being  sustained  by  proof  satis- 
factory to  the  court,  it  is  not  doubted  the  court  may  grant 
such  relief  as  the  party  should  show  himself  justly  entitled  to. 
Tne  same  rule  would  appl}^  to  an  agreement  as  to  certain  facts. 

Tsh  V.  Crane,  13  0.  S.  574,  580. 

Dewey  v.  Sloan,  11  Bull.  102,  9  0.  D.  R.  151. 

See  Garrett  v.  Ilanshue,  53  O.  S.  482,  496. 

(c)  After  a  case  is  reserved  to  the  supreme  court  upon 
issues  joined  and  an  agreed  statement  of  facts,  no  change  of 


11  jUuICiAL  ADU.ISSIONS  §  13 

the   pleadings  making  new   issues  and  requiring  further  evi- 
dence Avill  be  allowed,  unless  it  is  made  clear  that  without  it 
the  rights  of  a  party  will  be  sacrificed  or  plain  injustice  done. 
Wicwell  V.  Church,  14  0.  S.  31. 


12.  AGREEMENTS  AS  TO  CERTAIN  FACTS. 

(a)  An  agreement  as  to  evidence  relates  only  to  certain 
facts,  from  which  Avith  other  evidence  the  ultimate  facts  are 
to  be  found.  When  such  an  agreement  is  accompanied  by 
other  admitted  facts,  the  agreement  as  to  evidence  must  be 
construed  in  connection  with,  and  in  the  light  of  the  other 
admitted  facts  of  the  case. 

Cincinnati  v.  Lead  Co.,  44  0.   S.  243. 
Wisby  V.  Bonte,   19  0.  S.  238,  247. 

(b)  The  attorneys  of  record  placed  upon  an  abstract  of 
title,  over  their  signatures,  the  following  agreement:  "It  is 
hereby  agreed  that  the  Avithin  abstract  shows  the  true  condi- 
tion of  the  title  to  the  lands  therein  abstracted."'  It  was  held 
that  this  is  sufficient  to  authorize  such  abstract  to  be  intro- 
duced in  evidence  on  the  trial.  It  was  not  necessary  that  the 
agreement  should  state  that  the  abstract  may  be  used  as  evi- 
dence on  the  trial.  The  truth  of  the  abstract  having  been 
admitted,  the  plaintiff  had  a  right  to  use  it  as  evidence  with- 
out further  agreement. 

Garrett  v.  Hanshne.  53  0.  S.  482,  496. 

(c)  In  an  early  case,  it  was  held  that  a  written  agreement 
of  counsel  made  for  use  on  a  rule  to  show  cause,  is  not  the 
admission  of  the  party  for  any  other  purpose;  it  is,  like  the 
admission  of  a  demurrer,  to  be  used  only  in  the  particular 
matter  in  which  it  is  filed. 

State,  ex  rel.,  v.  Buchanan,  Wright  233. 

13.  ORAL  ADMISSIONS  BY  PARTY. 

(a)  A  party  may  admit  that  the  issue  joined  is  against 
him,  and  suffer  judgment  without  an  investigation  of  the 
facts.  But  a  declaration  by  a  party  that  he  had  admitted 
what  was  necessary  to  sustain  the  case,  or  that  he  would  ad- 


§  14  METZLER'S   OHIO    TRIAL    EVIDENCE  12 

mit  what  was  necessary,  is  not  an  admission  of  any  particular 
facts,  and  does  not  dispense  with  their  proof. 

Ciftings  V.  Baker,  2  0.  S.  21,  23. 

Statu,  ex   rel.,  v.   JJuchaiian,  \^■right  2CG. 

(b)  And  an  offer  to  confess  judgment  is  not  deemed  an 
admission  of  the  cause  of  action  or  of  the  amount  to  which  the 
]ilaintiff  is  entitled.  An  offer  to  confess  judgment  for  a  cer- 
tain sum  does  not  entitle  the  other  party  to  a  judgment  for 
at  least  that  sum. 

F^oe  Sertinn    lloDS,  Oeneral   Code. 

Wi'itz  V.  V/eiiliam,  G  t.  D.  53:1.  K)  C.  C.   Z^S.  .".30. 

(c)  The  parties  can  not  make  a  binding  agreement  requir- 
ing a  controversy  to  be  tried  in  court  contrary  to  the  estab- 
lished rules  of  judicial  proceedings.  No  agreement  would  be 
valid  that  would  require  the  court  to  change  the  rules  of 
evidenr-p.  The  ^'ourts  will  not  permit  the  parties  to  establish' 
by  agrccr^ent  ru'es  of  evidence  v.iiich  are  wholly  at  war  with 
the  funrr  —  c^^tpl  p:  •]r-;^es  of  evidence. 

r;ft;.-fr5  v.  yif'-or,  2  '^    '^'    21,  2^. 
Troiie   V.   Assurance   Co..    ]3   0.    I\    20^.. 

(d)  Where  the  parties  to  a  judgment  consent  in  open 
cfuirt  at  the  time  the  judgment  is  rendered,  that  one  or  more 
of  the  defendants  may  be  certified  as  sureties,  it  is  sufficient 
without  other  evidence  to  authorize  the  entry  of  a  certificate 
of  such  suretyship. 

PeVrs  V.  MeWilUnms,   3'i   0.   R.    155. 

14.  ORAL  ADMISSIOMS  BY  ATTORNEY. 

(a)  Am  attornev  of  record  has  power  to  do  on  behalf  of 
liis  client  all  acts,  in  or  out  of  court,  necessary  or  incidental 
to  the  prosecution,  defense,  or  management  of  .the  action, 
which  affect  only  the  remedy  and  not  the  right;  and  this  in- 
cludes the  power  to  waive  objections  to  evidence  and  to  enter 
into  stipulations  for  the  admission  of  facts  on  the  trial, 

CTrrett  v.  TTanshne,  .5.3  0.  S.  4S2. 

(b)  AYhen  an  admission  is  made  bv  counsel  during  trial, 
iinp  meaninsr  and  effect  of  such  admission  is  to  be  determined 
f'^om   tV.e   Ip.nguage  used,   in  connection  %vith   all   the   circum- 


13  JUDICIAL   ADMISSIONS  §  14 

stances  under  -which  it  is  made,  including  the  other  evidence 
adduced  by  the  party. 

Pierce  v.  White.  22  Bull.  9S,  10  0.  D.  E.  5.j2. 

Cf.   Rankin  v.  ilanuan,  38  0    fe.  4uS,  4-tU. 

(c)  When  the  statements  in  a  ])etition  are  ambiguous  as 
to  whether  a  former  action  was  dismissed  by  the  i)laintifi:  or 
by  the  court  without  prejudice,  the  admissions  of  the  attorney 
made  in  his  brief  and  oral  argument  in  the  reviewing  court 
may  furnish  an  interpretation  of  the  language  of  the  petition. 

Piscopo  V.  Railway,  19  C.  C.   (X.S.)    29S. 

(d)  If  the  attorney  for  plaintiff  in  making  the  ojieniiig 
statement  of  his  case  to  the  jury,  admits  or  states  facts,  the 
existence  of  which  absolutely  precludes  a  recovery  by  him, 
the  court  may  close  the  trial  at  once  and  giv.e  judgment 
against  him.  "When  such  an  admission  is  made  and  the  defend- 
ant moves  to  arrest  the  cause,  the  defendant  admits,  for  the 
purposes  of  the  motion,  the  facts  stated  by  the  plaintiff,  and 
thus  there  is  in  substance  and  effect  an  agreed  statement  of 
facts.  However,  opportunity  should  be  given  to  the  plaintiff 
to  modify  or  explain  or  add  to  the  statement  so  made. 

Cornell  v.  Morrison,  87  0.  S.  215. 

Compton  Co.  v.  Stewart,  25  C.  C.    (N.S.)    270,  27  C.  D.   428. 


CHAPTER  11. 
JUDICIAL  NOTICE. 

J.").  General  principles. 

10.  In  subjects   other  tlian  evidence. 

17.  Matters  of  general  and   local  government. 

18.  Legislative   proceedings. 

19.  Public  and  general   law. 

20.  Ordinances. 

21.  Courts    and   their    proceedings. 

22.  Generally  accepted   public  history. 

23.  Geography. 

24.  Facts  of  science  and   of  art. 
2.5.  Matters   of  common   knowledge. 

15.  GENERAL  PRINCIPLES. 

(a)  Courts  may  take  judicial  notice  of  many  facts ;  and 
when  facts  are  noticed,  they  need  not  be  proved.  And  every 
noticeable  fact  is  within  common  knowledge  or  easily  ascer- 
tained and  verified.  The  doctrine  applies  to  evidential  as 
well  as  to  ultimate  facts.  And  the  ultimate  facts  which  may 
b3  judicially  noticed  need  not  be  stated  in  a  pleading. 

See  Thayer,  Pre.  Treat.  Ev.,  Ch.  7. 

See  Section   11331.  General  Code. 

State,  ex  rel.,  v.  Smith,  44  0.  S.  348,  362. 

(b)  The  law  of  judicial  notice  is  not,  strictly  speaking,  a 
part  of  the  law  of  evidence.  Even  when  a  question  of  notice 
affects  the  evidence  in  a  case,  it  is  not  strictly  a  question  of 
evidence,  but  one  of  dispensing  with  evidence.  And  in  such 
cases,  courts  will  judicially  notice  only  such  facts,  or  conclu- 
sions from  facts,  as  are  not  the  proper  subject  of  evidence. 
Matters  that  can  be  put  in  issue  in  the  pleadings  and  be  satis- 
factorily established  by  witnesses,  will  not  generally  be  judici- 
ally noticed. 

Cincinnati   v.  Hamilton  Co.,  7  Oh.    (Pt.   1),   88,  05. 
Pailroad  v.  HoflFhinos,  40  0.  S.  643,  651. 

16.  IN  SUBJECTS  OTHER  THAN  EVIDENCE. 

(a)  The  doctrine  of  judicial  notice  applies  to  subjects  of 
law  other  than  evidence.     In  construing  a  statute,  the  court 

14 


15  JUDICIAL    NOTICE  §  16 

■will  take  judicial  notice  of  the  history  of  the  subject-matter 

to  which  the  act  relates,  and  of  all  relevant  facts  which  are 

matters  of  common  knowledge.     And  the  court  will  assume 

that  the  legislature  knew  such  history  and  facts,  and  had  them 

in  mind  when  it  passed  the  act. 

Reid  V.  Board  of  Education,  6  X.  P.    (X.S.)    52fi,  16  0.  D.  414. 
See  also  Cross  v.  Armstrong,  44  O.  S.  613,  622. 

(b)  In  construing  a  statute  relating  to  practice,  the  court 
informed  itself  as  to  the  practice  by  inquiring  among  judges 
and  lawyers,  in  order  to  apply  the  rule  that  a  uniform  and 
general  practice  of  courts  shows  the  correct  construction  of 
a  statute. 

Campbell  v.  Campbell,  2  C.  T).  256.  n  C.  C.  440.  ir,?,. 
See  Dutoit  v.   Doyle,   16  O.   S.  400,   407. 

(c)  "WTien  the  practice  in  a  department  in  interpreting  a 
statute  is  uniform,  and  the  meaning  of  the  statute  upon  exam- 
ination is  found  to  ])e  doubtful  or  obscure,  the  court  will 
accept  the  interpretation  by  the  department  as  the  true  one. 

f^'tate,   ex  rel.,  v.   Akins,   18  C.  C.  34n,   10  C.  D.   121. 
Work  V.   Corrington,  34  0.  S.  64,   75. 

(d)  A  court  can  not  take  testimony  to  determine  the  oper- 
ation of  a  statute  and  thereby  declare  it  unconstitutional. 
AVhile  a  statute  must  stand  or  fall  by  its  operation  rather  than 
by  its  mere  form,  yet  in  passing  upon  the  constitutionality  of 
a  statute,  a  court  can  judge  of  its  operation  only  through 
facts  of  which  it  can  take  judicial  notice. 

State  V.  Xelson.  52  0.  S.  SS,  102. 

See  also  State,  e.x  rel.,  v.  Gibson,  15  0.  D.  73.  2  X.  P.    (X.S.)    221,  221). 

(e)  On  demurrer  a  court  took  judicial  notice  that  the 
governor  of  the  state  exercises  quasi-judicial  functions  when 
hearing  charges  against  a  subordinate  ofificer. 

Bishop  V.  Gazette  Co.,  4  Bull.  1082,  7  0.  T).  B.  711. 

(f)  "Where  a  petition  Avas  attacked  on  the  ground  that  it 
was  insufficient  for  want  of  an  averment  tliat  a  street  railroad 
company  was  incorporated  since  the  adoption  of  the  constitu- 
tion of  1851,  the  supreme  court  took  judicial  notice  that  no 
statute  existed  prior  to  1851,  Avhich  authorized  the  incorpora- 
tion of  street  railroad  companies. 

Rider  v.   Fritohny,  40   0.   S.  2S5,   201. 


§  17  METZLER'S   OHIO   TT.IAL    EVICEKCE  16 

(g)  In  construing  a  building  contract  the  supreme  court 
took  judicial  notice  that  few,  if  any,  buildings  are  completed 
without  changes  which  either  increase  or  diminish  the  amount 
of  material,  as  it  is  a  matter  of  common  knowledge. 

Mills-Carleton  Co.  v.  PTnberty.   S4  O.  S.   81.  87. 

(h)  There  are  many  cases  cited  in  the  following  pages  of 
this  chapter  which  might  be  treated  here.  In  a  number  of 
these  cases,  the  judicial-notice  rule  will  be  found,  upon  exam- 
ination, to  involve  no  evidential  matter.  As  related  to  evi- 
dence, however,  the  subject  of  judicial  notice  will  be  treated 
under  the  following  heads : 

Matters  of  General  and  Local  Government, 

Legislative  Proceedings. 

Public  and  General  Law. 

Ordinances. 

Courts  and  Their  Proceedings. 

Generally  Accepted  Public  History. 

Geography. 

Facts  of  Science  and  of  Art. 

Matters  of  Common  Kno\vledge. 


17.  MATTERS  OF  GENERAL  AND  LOCAL  GOVERNMENT. 

(a)  There  are  certain  executive  documents,  such  as  official 
proclamations,  treaties  with  foreign  powers,  and  other  public 
documents  issued  by  the  executive  or  legislative  department, 
which  courts  will  notice  judicially.  Since  courts  take  judicial 
notice  of  the  provisions  of  treaties  entered  into  Avith  our  gov- 
ernment, evidence  in  the  form  of  printed  copies  is  superfluous. 

r.ailroad  v.  noffhines,  4fi  0.   S.  fi43.  651. 

Tn   rf  Ardiiinn.  H   X.    P.    (X.R.)    :\'.]9.  20  0.   D.   -IV.. 

(b)  The  courts  of  this  state  are  required  by  statute  to 
take  judicial  notice  of  a  municipal  corporation,  when  it  is 
organized  by  the  election  of  its  officers.  And  all  courts  shall 
take  judicial  notice  of  the  classification  of  municipal  corpora- 
tions,   and    their    advancement,    reduction    and    surrender    of 


17  JUDICIAL    NOTICE  §  19 

powers.     But,   under   the   former  municipal   code,    the   courts 
■would  not  take  notice  that  a  city  was  of  a  certain  grade  or  class. 

Sections   3515   and   3525,   General   Code. 

Massa  v.  State,  3  C.  C.  fl,  2  C.  D.  6. 

Akerman  v.  Lima,  S  0.  D.  430,  7  X.  P.  't-J. 

Bolton  V.   Cleveland,   35  0.   S.   319,  321. 

(c)  The  court  of  appeals  in  Cuyahoga  county  took  judi- 
cial notice  that  the  city  of  Cleveland  had  by  a  vote  of  its 
people  adopted  a  charter.  And  a  court  will  take  notice  of 
the  time  of  the  elections  when  members  of  council  are  elected, 
and  when  the  terms  of  retiring  members  expire. 

^--tanire  v.  Cleveland.  26  C.  D.  186.  25  C.  C.    (X.S.)    590.  601. 
Chillicotbe  v.  Gas  Co.,   11   0.  D.  24,  S  X.  P.  SS. 

(d)  The  courts  take  judicial  notice  of  the  statutory  law  of 

the  state  and  of  the  population  of  its  cities;  and  it  is  within  the 

knowledge  of  the  court  that  a  particular  city  has  no  police 

court. 

Di'Mutli  V.  State,  7  0.  App.  245,  27  0.  C.  A.  585,  20  C.  D.  20. 
Tee  also  State,  ex  rel.,  v.  De:\hitli,  96  O.   S.  510,  526. 

IS.  LEGISLATIVE  PROCEEDINGS. 

(a)  It  seems  to  be  well  settled  that  courts  will  take  judi- 
cial notice  of  all  that  is  necessary  to  the  authentication  of  a 
statute.  An  American  court  is  supposed  to  be  judicially  ac- 
quainted with  the  rules,  practice,  and  prerogatives  of  the 
Federal  and  state  legislatures  to  which  it  is  subject.  So  a 
court  will  take  judicial  notice  of  the  journals  of  the  legislature. 

State,  ex  rel.,  v.  Smith,  44  0.  S.  348,  361. 

rtate  V.  Buttles.  3  0.  S.  .'^09.  324. 

Backenstoe  v.   State,   14   0.   D.   580,  2  X'.  P.    (X\S.)    178. 

(b)  But  where  a  bill  is  duly  passed  and  is  not  copied  upon 
the  journal  of  either  house,  nor  signed  by  the  presiding  officer 
of  either  house,  nor  enrolled  as  a  law,  nor  filed  regularly  in 
the  office  of  the  secretary  of  state,  nor  regularly  published 
with  other  laws  of  the  general  assembly,  it  does  not  purport 
to  be  a  law,  and  it  will  not  be  judicially  noficed. 

State  V.  Kiesewetter,  45  O.  S.  254,  256. 

19.   PUBLIC  AND  GENERAL  LAW. 

(a)  It  is  well  settled  that  the  courts  are  Ijound  to  take 
judicial  notice  of  i)iiblic  and  general  statutes;  but  a  private  or 


§  20  METZLER'S    OHIO    TRIAL    EVIDENCE  18 

special  statute  must  be  specially  pleaded.  In  pleading  a  pri- 
vate statute  or  a  right  derived  therefrom,  it  shall  be  sufficient 
to  refer  to  such  statute  by  its  title  and  the  day  of  its  passage. 

Eailway  v.  Moore,  33  0.  S.  384,  391. 
State   V.    Mulford,    12   0.   D.   655. 
See  Section   11340,  General  Code. 

(b)  A  court  could  properly  take  judicial  notice  of  the  act 
of  the  state  legislature  granting  to  the  United  States  jurisdic- 
tion at  the  Soldiers'  Home  at  Dayton;  and  that  by  such  act 
the  general  assembly  recognized  the  establishment  and  exist- 
ence of  that  institution. 

Driffffs  V.  State,  52  0.  S.  37,  55. 


oo 


(c)  Our  state  courts  will  take  judicial  notice  of  all  Fed- 
eral laws.  But  notice  can  not  be  taken  of  the  statutes  of  a 
foreign  country  or  of  the  laws  of  another  state ;  when  relied 
on,  they  must  be  proved  by  competent  evidence  like  any  other 
fact  material  to  the  case. 

Railroad  v.  Welsh,  SO  0.  S.  81. 
Evans  v.  Reynolds,  32  0.  S.   163. 
Kerr  v.  Lydecker,  51   0.   S.  240,  247. 
Wilhelm  v.  Parker,  9  C.  D.  724,   17   C.  C.  234. 

(d)  A  corporation  charter  granted  before  the  constitution 
of  1851  will  be  judicially  noticed  when  by  its  terms  it  is  re- 
quired to  be  taken  and  received  in  all  courts  and  by  all 
judges,  magistrates,  and  all  other  public  officers,  as  a  public 
act. 

KilLn'ath  v.  Rates,  38  0.   S.    187,    lO.l 

(e)  In  suits  brought  by  corporations  of  our  own  state,  the 

court  will,  when  there  is  a  general  denial,  take  judicial  notice 

of  their  capacity  to  sue ;  while  those  claiming  to  be  foreign 

corporations  must  prove  their  corporate  character  under  the 

general  issue. 

Smith  V.  Machine  Co..  26  0.  S.  562,  565. 
See  Rrady  v.  Supply  Co.,  64  O.  S.  267. 

20.  ORDINANCES. 

(a)  The  city  courts  and  the  mayor  of  a  village  will  take 
judicial  notice  of  the  ordinances  of  their  respective  municipal 


19  JUDICIAL    NOTICE  §  20 

corporations.     But  courts  other  than  municipal  tribunals  will 
not  take  judicial  notice  of  municipal  ordinances. 

Toledo  V  Libbie,  19  C.  C.  704,  S  C.  T).   "jSO. 

Gates  V.  Cleveland,  IS  C.  C.    (X..S.)    349. 

Chittenden  v.  Columbus,   16   C.  D.   531,  5  C.  C.    (X.S.)    S4. 

Euclid  V.  Bramley,  20  C.  C.    (X.S.)    453. 

(b)  If  a  court  holds  an  ordinance  invalid,  it  will  not  take 
judicial  notice  of  the  existence  of  a  preceding  ordinance  relat- 
ing to  the  same  matter,  Avhich  was  repealed  by  the  ordinance 
declared  invalid  and  Avhich  would  be  revived  by  the  holding 
that  the  second  ordinance  is  invalid  when  the  petition  makes 
no  reference  to  the  existence  of  another  ordinance. 

Ilengst  V.  Cincinnati,  9  0.  D.  730.  7  X.  P.   1. 

(c)  If  it  is  sought  to  have  the  validity  of  an  ordinance, 
or  the  sufficiency  of  the  affidavit  under  the  ordinance  deter- 
mined, the  ordinance  should  in  some  way  be  brought  into  the 
record.  For  this  purpose,  a  reviewing  court  will  not  take 
judicial  notice  of  the  ordinance. 

Xelson  V.  Berea,  21  C.  C.  7S1,  12  C.  T).  320. 
Evans  v.  \V<rt)ster,  2S  ().  C.   .A.  2S.-).  30  C.   I).   'IM). 
See  Grossner  v.  State,  IS  C.  C.    (X.S.)   46,  48. 
Esch  V.  Elyria,  7   C.  C.    (X.S.)    0.   17   C.  n.   446. 

(d)  Upon  conviction  in  a  police  court  for  violation  of  a 
municipal  ordinance  of  which  that  court  took  judicial  notice, 
the  bill  of  exceptions  failing  to  show  the  terms  of  the  ordi- 
nance, the  higher  courts  will  assume  the  existence  of  a  valid 
ordinance  authorizing  the  conviction,  if  the  offense  charged  in 
the  affidavit  is  one  as  to  which  the  municijiality  has  power  to 
legislate. 

Gates  V.  Cleveland,  IS  C.  C.    (X.S.)    349. 
See  Euclid  v.  Bramley,  20  C.  C.    (X^.S.)    453. 
Esch  V.  Elyria,  7  C.  C.    (X.S.)    0,  17  C.  T).  416. 

(e)  But  on  the  contrary  it  has  been  held  that  a  court  of 
review  occupies  the  same  relation  to  the  ordinance  as  the 
municipal  court,  and  where  one  against  whom  a  i)enalty  has 
been  assessed  for  the  violation  of  an  ordinance  seeks  to  have 
the  judgment  reversed,  the  reviewing  court  will  also  take 
judicial   notice   of  the   ordinance   under   which    the   conviction 


§  21  METZLER'S   OHIO   TRIAL    EVIDENCE  20 

was  had.     This,  however,  is  denied  by  the  cases  from  Berea 
and  Wooster,  which  were  affirmed  by  the  supreme  court. 
Strauss  v.  Conneaut,  3  C.  C.    (X.S.)   445,  13  C.  D.  320. 

(f)  And  it  has  been  held  by  other  courts  that  the  court  of 
common  pleas  on  error  from  the  police  court  or  the  mayor's 
court,  and  the  circuit  court  on  error  from  the  common  pleas, 
will  take  judicial  notice  of  all  things  of  which  the  municipal 
court  properly  took  notice. 

Strauss  v  Conneaut.  3  C.  C.   (X.S.)   445,  13  C.  D.  320. 

Akerman  v.  Lima.  7  X.   P.  92,  S  O.  D.  430. 

Keck  V.  Cincinnati,  3  X.  P.  253,  4  0.  D.  324. 

21.  COURTS  AND  THEIR  PROCEEDINGS. 

(a)  The  supreme  court  will  take  judicial  notice  of  who 
were  members  of  that  court  at  a  given  time,  and  of  the  time 
fixed  by  law  for  the  commencement  of  its  sessions;  but  it  can 
not  take  notice  of  the  duration  of  any  particular  session. 

Gilliland  v.  Sellers,  2  0.  S.  223. 

(b)  The  supreme  court  will  take  judicial  notice  that  the 

judges   who   signed   a   bill    of   exceptions   were    common-pleas 

judges  at  the  time  of  signing  the  same.    It  will  also  notice  the 

date  of  the  commencement  of  a  term  of  common  pleas  court; 

but  will  not  take  notice  of  the  length  of  the  term   of  said 

court. 

Wilson  V.  Giddings,  28  0.  S.  554.  561. 
Meriden  Co.  v.  Flory.  44  0.  S.  430,  436. 
Kent  V.   Bierce,   6   Oh.   336,  352. 

(c)  The  old  district  court  of  a  county  took  judicial  notice 
of  the  time  of  closing  a  term  of  the  common  pleas  court  of  the 
same  county;  but  it  refused  to  take  notice  of  the  court-rules 
of  the  superior  court  of  Cincinnati. 

Bayes  v.  ZimTtierman.  10  W.  L.  J.  240.  1  0.  D.  R.  509. 
Byrne  v.  \Yood,  9  Bull.   SOS.  S  0.  D.  B.  760. 

(d)  On  a  trial  for  contempt  of  court,  it  is  competent  for 
the  trial-judge  to  take  judicial  notice  of  pertinent  facts  con- 
nected with  the  transaction  Avhieh  come  within  the  cognizance 
of  his  own  senses.     It  is  not  competent  for  him,  however,  to 


21  JUDICIAL    NOTICE  §  22 

take  judicial  notice  of  another  contempt  of  tlie   same   court. 

for  Avliicli  the  respondent  had  been  tried  and  found  guilty. 

:\Iyers  v.   State,   46  0.   S.   47.3.  402. 

Sherwin-Williams  Co.  v.   Insurance  Co.,  20  C.  C.    (X.S.)    l.")l. 

(e)  The  action  of  the  trial-court  made  a  matter  of  record 
in  that  court,  and  of  which  it  takes  judicial  notice,  must  be 
embodied  in  a  bill  of  exceptions  in  order  to  be  considered  by 
a  reviewing  court. 

Grossner  t.  State,  18  C.  C.    (X.S.)    46. 

(f )  "Where  an  indictment  for  murder  was  returned  against 

a  defendant,  to  which  he  pleaded  not  guilty,  and  on  which  he 

was  convicted  and  sentenced,  it  was  held,  on  error  to  reverse 

the  sentence,  that  no  notice  could  be  taken  of  the  action  of 

the  court  on  a  former  indictment  for  the  same  homicide. 

Wroe  V.  Stat(\  20  0.  S.  460. 

Horner  v.  State,  S  C.  C.    (X.S.)    441,  IS  C.  D.  568. 

(g)  "Where  a  nisi  prius  court  is  composed  of  several 
judges,  they  are  not  bound  to  take  judicial  notice  of  all  the 
eases  pending  before  the  court  as  a  whole,  or  of  the  proceed- 
ings vv'hich  are  being  taken  therein  ;  and  an  entry  in  one  case, 
in  so  far  as  it  affects  the  rights  of  a  party  to  another  case,  is 

a  nullity. 

Crier  Co.  v.  l^diaiice  Co.,  14  X.  V.    (X.S.)   353,  26  0.  D.  320. 

(h)     The  trial-court  will  take  judicial  notice  of  who  was 

prosecutor  when  an  indictment  was  returned ;  and  of  who  was 

foreman  of  the  grand  jury,  as  the  appointment  was  made  by 

the   court  and  is   a  matter  of  record.     And   a  justice  or   the 

peace  may  take  notice  of  the  i)roceedings  on  his  docket. 

State  V.  Mulfnnl.  12  0.  D.  720. 

Wliiting  V.  State.  48  0.  S.  220,  231. 

Brown  V.   DeLoiig,  6   X.    P.    (X.S.)    510,   IS   0.   D.    474. 

22.  GENERALLY  ACCEPTED  PUBLIC   HISTORY. 

(a)  Certain  facts,  properly  matters  of  history,  which  have 
been  long  since  transacted,  and  of  which  no  person  can  give 
testimony,  may  be  proved  by  history  of  the  times  in  which 
they  were  transacted.  The  reason  why  public  liistory  is  ad- 
mitted as  evidence  seems  to  bo,  tliat  the  facts  necessary  to  be 
established  are  properly  subjects  of  history:  a^d  because  of 


§23  METZLER'S   OHIO    TRIAL    EVIDENCE  22 

the   extreme   difficulty    or   utter   impossibility    of    establishing 
those  facts  by  any  other  evidence. 
Morris  v.  Edwards,  1  Oh.  189,  209. 

(b)  The  court  will  take  judicial  notice  of  the  history  of 
the  country ;  and  as  a  part  of  that  history,  it  will  notice  judi- 
cially the  Seminole  treaty  of  1832,  and  the  war  with  that  tribe 
from  1835  to  1842. 

Sperry  v.  Tebbs,  20  Bull.  ISl,  10  0.  T).  R  HIS. 

(c)  But  facts  of  recent  occurrence  relating  to  a  particular 
section  of  country  only,  can  not  be  considered  as  in  evidence 
from  general  knowledge  or  recollection.  Therefore,  a  court 
will  not  take  judicial  notice  of  a  local  custom  which  gives  to 
a  word  in  a  written  contract  a  special  meaning. 

Morris  v.  Edwards.  1   Oh.   1S9,  207,  209. 

(d)  A  court  will  not  take  notice  that  a  railroad  company 

has  been  operating  cars  for  more  than  a  year,  nor  take  notice 

of  a  statement  in  a  report  of  the  commissioner  of  railroads  to. 

the  effect  that  the  terms  of  a  statute  had  been  complied  with. 

Such  matters  are  proper  subjects  of  allegation  and  proof. 

Railroad  v.  Wilson,  31  0.  S.  555,  5Q0. 
Railroad    v.   lloffhincs.   46    0.   S.    643. 

23.  GEOGRAPHY. 

(a)  The  court  will  take  judicial  notice  of  the  division  of 

the   country   into   states   and   counties,    and   of   the   names   by 

which  they  are  designated,  and  also   of  the  relative  position 

they  bear  to   each  other.     Therefore,   a  court  will  judicially 

notice  that  the  city   of  Philadelphia  is   outside   the  state   of 

Ohio,  and  that  the  city  of  Springfield  is  in  Clark  county. 

Thomas  v.  Bank,  1  C.  L.  R.  37,  4  0.  D.  R.  32. 
Nieswonger  v.  Insurance  Co.,  Iddings  154. 

(b)  A  court  will  take  notice  of  the  geography  and  gen- 
eral commercial  relations  of  cities  and  regions.  But  a  court 
will  not  take  notice  that  a  river  and  a  creek  of  the  same 
name  are  the  same  stream,  nor  that  all  of  a  stream  from  the 
mouth  up  to  a  certain  point  is  within  one  county. 

Hafer  v.  Railroad,  29  Bull.  68,  4  0.  D.  4S7,  492. 
Navigation  Co.  v.  Eagle,  29  0.  S.  238. 


23  JUDICIAL    NOTICE  §  24 

(c)  A  court  took  judicial  notice  of  a  map  of  the  city  of 
Toledo  iu  order  to  determine  the  approximate  distance  be- 
tween certain  points  on  a  railroad  track  within  the  city  limits. 
And  a  court  may  notice  that  a  particular  township  is  a  frac- 
tional one,  and  that  it  could  be  subdivided  ;  but  not  that  it 
has  been  subdivided. 

Wainright  v.  Railway,  11  C.  D.  530. 
Stajiberry  v.  Xelson,  Wright  766. 

(d)  The  county  is  a  municipal  subdivision  of  the  state,  as 
the  boundary  lines  thereof  arc  established  by  legislative  en- 
actment. It  is  therefore  a  matter  of  judicial  knowledge  that 
a  particular  county  is  within  and  a  part  of  the  state.  If  an 
offense  is  charged  to  have  been  committed  in  a  county,  the 
failure  to  allege  that  the  county  is  in  the  state  of  Ohio,  is  not 
sufficient  ground  for  the  arrest  of  the  judgment. 

Foster  v.  State.   10  0.  S.  415,  41S. 

(e)  If  the  evidence  shows  that  an  offense  was  committed 
on  a  certain  street  in  a  certain  city  without  naming  the  county 
and  state,  it  is  sufficient  proof  of  the  venue;  the  court  will 
take  notice  that  the  city  is  iu  a  county  of  the  state  of  Ohio. 

State  V.  Fxitz,  11  N.  P.   (KS.)    138. 

Ames  V.  State,   11   N.  P.    (N.S.)    385,  22  O.  D.  92. 

See  State  v.  Dickerson,  77  0.  S.  34. 

(f)  In  reviewing  the  judgment  of  a  police  court,  judicial 
notice  will  be  taken  that  a  misdemeanor  committed  in  a  cer- 
tain township  in  the  county,  was  committed  more  than  four 
miles  beyond  the  limits  of  the  city,  whose  police  court  tried 
the  accused,  when  the  distance  to  the  nearest  point  in  the 
township  is  more  than  four  miles. 

Hinckley  v.  State,  IS  0.  D.  19,  4  0.  L.  R.  408. 

24.  FACTS  OF  SCIENCE  AND  OF  ART. 

(a)  A  court  will  take  judicial  notice  of  the  advance  and 
progress  of  photography;  but  it  will  also  notice  that  the  ac- 
curacy of  a  likeness  depends  on  the  skill  of  the  artist  and  the 
purity  of  chemicals  and  other  materials  used. 

Vamer  v.  Varner,  16  C.  C.  386,  9  C.  B.  273.  276. 

(b)  A  court  will  judicially  notice  the  ordinary  course  of 
nature;  such,  for  instance,  as  tlint  tlie  sun  sets  about  5:20  in 


§25  METZLER'o    OHID    TRIAL    EVIDENCE  24 

the  evening  near  the  first  day  of  February,  and  that  a  certain 
day  of  the  mouth  fell  on  Sunday. 

Railroad  v.  Hatch,  G  C.  C.  230,  3  C.  D.  430. 

Warren  v.  Theater  Co.,  7  N.  P.  538,  o  O.  D.  559, 

(c)  But  courts  have  refused  to  take  notice  of  the  nature 
of  the  system  known  as  Christian  Science,  or  that  consumption 
is  incurable,  or  of  the  natural  appearance  of  oleomargarine. 

Evans  v.  State,  6  N.  P.  129,  9  0.  D.  222,  224. 

Piso  Co.  V.  Voight,  6  0.  D.  479,  4  X.  P.  347. 

Patterson  v.   State,   Iddings   130. 

25.  MATTERS  OF  COMMON  KNOWLEDGE. 

(a)  The  rule  is  that  courts  will  take  judicial  notice  of 
w^hatever  should  be  generally  known  within  the  limits  of  their 
jurisdiction,  such  as  the  nature  of  oil-well  drilling  and  of 
production  of  oil. 

Oil  Co.  V.  Kelley,  6  C.  D.  470,  0  C.  C.  511. 

(b)  It  is  a  matter  of  common  knowledge  and  will  be  judi- 
cially noticed  that  blood-hounds  are  possessed  of  a  high  degree 
of  intelligence  and  acuteness  of  scent ;  and  that  they  may  be 
trained  to  follow  human  tracks  with  considerable  certainty  if 
put  upon  a  recent  trail. 

State  V.  Hall,  3  K  P.   125,  4  0.  D.  147,  148. 

(c)  Courts  will  take  judicial   notice   of  the   meaning   of 

ordinary^  English   words,   such   as  the  word  ''policy"   in   the 

gaming  statutes  as  meaning  a  kind  of  lottery;  and  also  of  the 

meaning  of  the  word  "sinking-fund." 

Adams  v.  State,  14  0.  D.  257,  250. 
Cincinnati  v.  Ferguson,   12  0.   D.  439,   482. 

(d)  Courts  will  notice  judicially  how  street-cars  are  run, 

and  that  the  traveling  public  know  how  to  board  cars;  that 

street-cars  are   a  public  necessity,  and  can   only  be   efficient 

when    affording    rapid    transportation.      Courts    will    not    be 

ignorant  upon  matters  of  universal  knowledge. 

Schwartz  v.  Railway,  8  C.  C.  484,  4  C.  D.  272. 
Bethel  v.  Railway,  15  C.  C.   381,  8  C.  D..  310. 

(e)  Courts  have  taken  judicial  notice  of  the  business  and 
office  of  mercantile  agencies,  and  have  noticed  that  arithmetic 


25  JUDICIAL    NOTICE  §  25 

is  oue   of  the   subjects  taught   in   all   common  schools   of   the 
state. 

Wilmot  V.  Lyon,  7  C.  D.  394,   11   C.  C.  238. 

State,  ex  rel.,  v.  Freed,   10  C.   C.  294,  6  C.  D.  550,  552. 

(f)  The  courts  of  Hamilton  county  took  judicial  notice  of 

the  city  of  Cincinnati,  and  of  its  waterworks  and  water  supply, 

and  at  what  premium  the  city  had  shortly  before  sold  bonds ; 

and  also  that  property  in  said  city  leased  years  before  for  a 

term  of  ninety-nine  years  was  leased  at  very  much  less  than 

its  present  value. 

Cincinnati,  ex  rel.,  v.  Cincinnati,  11  C.  C.   309,  5  C.  D.  372,  377. 
Guckenberger  v.   Dexter,  5  X.  P.  429,  S  0.  D.  530. 
Ludlow  V.  Brewster,  2  C.  D.  47,  3  C.  C.  82,  84. 

(g)  The  supreme  court  of  this  state  has  held  that  an  elec- 
tion under  the  Rose  local-option  law  is  not  a  matter  of  such 
common  notoriety  that  a  judge  may  take  judicial  notice  of 
the  holding  of  the  election  and  its  result. 

Geisse  v.  State,  85  0.  S.  457. 


CHAPTER  III. 
PRESUMPTIONS. 

26.  General    principles. 

27.  Presumption  of   innocence. 

28.  Presumptions   of  capacity. 

29.  Relating  to  deeds  and  conveyances. 

30.  Presumption   of   payment. 

31.  Miscellaneous    presumptions. 

32.  Effect  of  decisions. 

33.  Omnia  praesumuntur. 

34.  Validity  of  official   acts. 
3').   Decision   below  sustained. 

36.  Reasoning  of  the  court. 

37.  Prima   facie  evidence. 

38.  Performance  of  duty. 

39.  Regularity  of  transactions. 

40.  Rule  on  burden  of  proof. 

41.  Presumptions  of  fact. 

42.  The  presumption  of   continuance. 

43.  Construction  of   writings. 

44.  Conclusive   presumptions. 

26.  GENERAL  PRINCIPLES. 

(a)  The  presumptions  of  law  which  affect  the  law  of  evi- 
dence are  disputable.  When  the  term  "presumption  of  law"  is 
used,  it  is  ordinarily  assumed  that  the  word  "disputable"  is 
understood;  but  the  word  is  usually  omitted  in  order  to  avoid 
a  name  too  long  for  every-dayuse,  A  disputable  presumption 
of  law  is  a  rule  attaching  a  prima  facie  significance  to  certain 
facts,  which  obtains  recognition  in  the  courts  and  is  regularly 
applied  by  them ;  and  in  jury  cases,  the  rule  is  laid  down  to 
the  jury  by  the  trial-judge.  Whenever  the  amount  of  evidence 
necessary  to  make  a  prima  facie  case  is  determined  by  law, 
the  rule  may  be  called  a  presumption  of  law.  The  presump- 
tion casts  upon  the  party,  against  whom  it  operates,  the  duty 
of  going  forward  with  the  evidence  on  the  particular  point  to 
which  it  relates. 

See  Thayer,  Pre.  Treatise,  pp.  314,  340,  543  note. 

(b)  It  has  been  said  that  presumptions  are  founded  upon 
the  experience  and  observation  of  distinguished  jurists,  as  to 

26 


27  PHESUMPTIONS  §  26 

^vhat  is  usually  found  to  be  the  fact  resulting  from  any  given 
circumstances;  that  presumptions  arise  from  the  doctrine  of 
probabilities ;  that  the  future  is  measured  and  weighed  by  the 
past,  and  presumptions  are  created  from  the  experience  of  the 
past ;  that  what  has  happened  in  the  past  will  probably  under 
the  same  conditions,  hap])en  in  the  future;  and,  that  until  the 
contrary  is  shown,  ordiiuiry  and  probable  results  will  be  pre- 
sumed to  take  place. 

Behrenfe  v.  Behrens,  47  0.  S.  323,  331. 
Traction  Co.  v.  Holzenkamp,  74  0.  S.  379,  38.3. 

(c)  It  is  quite  clear  that  the  statement  made  in  the  pre- 
ceding paragraph  does  not  apply  to  all  disputable  presump- 
tions. The  presumption  that  an  accused  person  is  innocent  is 
not  based  on  inference  or  on  probability  of  any  kind.  The 
meaning  is  that  such  is  the  legal  presumption.  No  doubt,  the 
actual  presumption  is  that  a  man  who  has  been  first  examined 
before  a  magistrate  and  afterwards  indicted  by  a  grand  jury, 
must  be  guilty ;  that  is,  his  guilt  is  thus  rendered  more  prob- 
able than  his  innocence.  But  still  the  law  humanely  presumes 
him  to  be  innocent  so  far  as  relates  to  the  burden  of  proof.  It 
is  not  for  the  prisoner  to  prove  his  innocence,  but  for  the  state 
to  prove  his  guilt;  and  he  need  say  nothing  in  defense  until  a 
prima  facie  case  is  made  out  against  him. 

See  Walker,  American  Law,  10th  Ed.  p.  7S7. 

(d)  A  disputable  presumption  always  arises  on  certain 
facts.  These  facts  are  usually  adduced  in  evidence;  for  ex- 
ample, when  it  is  shown  that  a  child  was  begotten  in  lawful 
wedlock,  there  arises  a  disputable  i)resumption  that  it  is 
legitimate.  Some  presumptions,  however,  arise  from  knoAvn 
facts;  as  when  it  is  presumed  that  a  man  is  sane  from  the 
knoAvn  facts  that  he  is  a  human  being  and  that  sanity  is  the 
normal  condition.  From  the  mere  statement  of  these  pre- 
sumptions, it  is  plain  that  a  presumption  is  not  always  fully 
warranted  by  such  facts,  whether  known  or  adduced  in  evi- 
dence. By  the  given  state  of  facts,  proof  is  usually  made  in 
part,  and  the  rest  is  assumed;  and  the  assumed  part  need  not 
be  proved  until  some  evidence  is  adduced  against  it. 

(e)  Then  disputable  presumptions  arc  not  evidence  rn  its 
strictest  sense.     They  are,  however,  in  (he  luiture  of  evidence; 


§  27  METZLER'S   OHIO    TRIAL    EVIDENCE  28 

and  in  practice  they  affect  the  law  of  evidence.  When  such  a 
presumption  arises,  it  makes  a  prima  facie  case ;  that  is,  one 
sufficient  to  establish.  However,  a  disputable  presumption, 
as  its  name  imi)lies,  may  be  rebutted.  But  as  long  as  it  re- 
mains unrebutted,  the  facts  legally  presumed  are  as  effectually 
established  as  facts  proved. 

Dalrymple  v.  State,  5  C.  C.    (X.S.)    185,  16  C.  D.  562. 
Ward   V.   Barrows.   2   0.   S.   241,   247. 
Coombs  V.  Lane,  4  0.  S.  112. 
Wallace  v.  Miner,  6  Oh.  366,  370. 
Silvus  V.  State,  22  0.  S.  90,  101. 

27.  PRESUMPTION  OF  INNOCENCE. 

(a)  Upon  the  trial  of  all  criminal  causes,  the  laAv  pre- 
sumes a  party  charged  with  crime  to  be  innocent ;  and  the 
burden  of  proof  is  upon  the  prosecutor,  unless  a  different  rule 
has  been  provided  by  statute.  This  legal  presumption  of  inno- 
cence can  be  overcome  only  by  full  proof,  such  as  will  exclude 
all  reasonable  doubt  of  the  guilt  of  the  accused. 

Fuller  V.  State,  12  0.  S.  433. 

(b)  An  instruction  by  the  court  to  the  jury  that  the  state 
must  prove  the  material  elements  of  the  crime  beyond  a  rea- 
sonable doubt,  fully  secures  to  the  defendant  the  benefit  of 
the  legal  presumption  of  his  innocence.  And  where  the  court, 
after  stating  the  rule  of  law  as  to  the  presumption  of  inno- 
cence, adds  that  in  all  doubtful  cases  this  presumption  is  suffi- 
cient to  turn  the  scale  in  favor  of  the  prisoner,  and  imme- 
diately adds  thereto  a  statement  of  the  rule  that  unless  the 
jury  finds  the  accused  guilty  beyond  a  reasonable  doubt,  he 
is  entitled  to  an  acquittal,  such  instruction  is  neither  erroneous 
nor  misleading.. 

Morehead  v.  State.   34  0.   S.  212. 
State  V.  Knapp.  70  0.  S.  380. 

(c)  There  is  another  presumption  in  favor  of  innocence. 
"When  a  married  woman  has  committed  a  criminal  act  in  the 
presence  of  her  husband,  there  is  a  presumption  that  she  acted 
under  his  coercion.  But  this  may  be  rebutted;  and  when  it 
is  shoAvn  that  she  acted  voluntarily  and  not  by  coercion,  she 
is  liable  to  a  prosecution. 

Tabler  v.  State,  34  0.  S.  127,  134. 


29  PRESUMPTIONS  §  28 

28.  PRESUMPTIONS  OF  CAPACITY. 

(a)  At  common  law,  a  child  under  seven  years  of  age  is 
conclusively  presumed  incapable  of  crime.  Between  seven  and 
fourteen  years,  the  law  also  deems  the  child  incapable,  but 
only  ]:)rima  facie  so ;  evidence  may  be  received  to  show  crim- 
inal capacity.  The  rule  is  sustained  by  many  authorities  and 
may  be  regarded  as  an  accepted  rule  of  criminal  law. 

Railroad  Co.  v.  :Mackey,  5.3  0.  S.  ?uO,  ."xS;"!. 
\Yalker,  American  Law,   11th  Ed.,  p.  555. 

(b)  The  law  presumes  that  an  infant  under  the  age  of 
fourteen  years  is  incapable  of  committing  or  attempting  to 
commit  the  crime  of  rape ;  but  this  i)resumption  may  be  re- 
butted by  evidence  that  such  person  has  arrived  at  the  age  of 
puberty. 

Williams  v.  State,  14  Oh.  222. 
Ililtabiddle  v.  State,  35  0.  S.  52. 

(c)  It  is  said  that  an  infant  oyer  fourteen  years  of  age  is 
presumed  to  be  sui  juris  in  the  sense  that  he  is  chargeable 
Avith  negligence ;  and  that  -w  hen  the  infant  is  under  fourteen, 
no  presumption  arises,  but  the  question  of  capacity  of  the 
infant  to  avoid  danger  under  tlie  circumstances  of  the  case  is 
one  to  be  left  to  the  jury  under  proper  instructions. 

Pvailway  v.  Conner,  G  C.  C.  (N.S.)   .3G1,  17  C.  D.  220. 

Itaihvay  v.  GiiUa,   15   C.  ('.  (X.S.)    540,  24   C.  D.    101. 

Traction  Co.  v.  Blackson,  6  C.  C.    (X.S.)    233,  17  C.  D.   101. 

Traction  Co.  v.  Moeller,   17  0.  D.  22. 

Cf.  Schaher  v.  llinif?,  IS  C.  C.    (X.S.)    414. 

(d)  Prior  to  the  enactment  of  G.  C.  Section  12414,  the 
presumption  of  the  law  was  that  a  female  child  under  ten 
years  of  age  was  incapable  of  giving  consent  to  an  act  of 
carnal  knowledge,  or  of  assault  with  intent  to  commit  the  act ; 
but  the  presumption  was  rebuttable  by  evidence  that  she 
understood  the  nature  of  the  act  committed  or  inteiided.  A 
preponderance  of  evidence  was  sufficient  to  rebut,  and  it  was 
error  to  charge  the  jury  that  the  rebutting  evidence  in  such 
case  must  show  the  female's  capacity  beyond  a  reasonable 
doubt. 

O'Meara  v.  State,  17  O.  S.  515. 


§  29  METZLER'S   OHIO   TRIAL    EVIDENCE  30 

29.  RELATING  TO  DEEDS  AND  CONVEYANCES. 

(a)  When    a    person    purchases    property    with    his    own 

funds  and  places  the  title  in  the  name  of  a  stranger,  the  legal 

presumption  is  that  he  made  such  purchase  for  his  own  use, 

and  that  the  property  is  held  in  trust  for  him.     But  where 

such  conveyance  is  made  by  a  man  to  a  member  of  his  own 

family,  the  presumption  is  that  the  property  is  intended  as  a 

gift  or  advancement. 

Creed  v.   Bank,   1   0.  S.   1. 

Tremper  v.   Barton,   18  Oh.  418,   423. 

Vanzant  v.  Davies,  6  0.  S.  52,  54. 

(b)  However,  there  is  no  presumption  that  a  gift  is  in- 
tended when  the  consideration  is  paid  by  a  child,  and  the 
conveyance  is  made  to  his  parent ;  on  the  contrary,  the  pre- 
sumption is  that  the  legal  title  was  so  placed  in  the  parent  in 
trust  for  the  benefit  of  the  child;  and  the  burden  is  on  the 
holder  of  the  legal  title  to  overcome  that  presumption. 

Roberts  v.  Remy,  56  0.  S.  249. 

(c)  Tn  general,  any  gift  by  deed,  will,  or  otherwise  is 
supposed  prima  facie,  unless  the  contrary  appears,  to  be  bene- 
ficial to  the  donee.  Consequently,  the  law  presumes,  until 
there  is  proof  to  the  contrary,  that  every  gift,  whether  in 
trust  or  not,  is  accepted  by  the  person  to  whom  it  is  expressed 
to  be  given.  And  when  a  grant  is  a  pure  unqualified  gift,  the 
presumption  of  acceptance  can  be  rebutted  only  by  proof  of 
dissent. 

Harvey  v.  Gardner,  41  0.  S.  642,  649. 
.Mitchell  V.  Ryan,  3  0.  S.  377. 

(d)  Where  a  deed  is  found  in  the  grantee's  hands,  a  de- 
livery and  acceptance  is  always  presumed.  And  in  the  absence 
of  evidence  to  the  contrary,  it  will  be  presumed  that  a  deed 
was  delivered  on  the  date  of  its  execution. 

Schultz  V.  Colvin,  55  0.  S.  274,  288. 

Oehler  v.  Walsh,  7  C.  C.    (N.S.)    572,  18  C.  D.  446. 

(e)  When  a  will  once  known  to  exist  and  to  have  been  in 
the  custody  of  the  testator  can  not  be  found  after  his  decease, 
the  legal  presumption  is  that  it  was  destroyed  by  the  testator 
with  the  intention  of  revoking  it.  If  the  will  can  not  be  found, 


31  PRESUMPTIONS  §  30 

it  is  more  reasonable  to  presume  that  he  destroyed  his  will 
than  that  some  other  person  has  committed  a  crime  by  secret- 
ing or  destroying  it. 

Behrens  v.   Behrens,  47  0.   S.  323. 

Cole  V.  McClure,  SS  0.  S.  1. 

Cf.  Hutson  V.  Hartley,  72  0.  S.  262,  2GS. 

(f)  Sometimes  this  presumption  is  said  to  be  one  of  fact 
and  sometimes  to  be  one  of  law.  In  Behrens  v.  Behrens,  the 
presumption  is  held  to  be  one  of  law.  The  trial  court  in  the 
same  case  plainly  indicated  that,  in  its  judgment,  it  is  one  of 
fact  by  charging  the  jury  that  it  was  at  liberty  to  believe  that 
there  was  a  revocation;  yet,  the  supreme  court  nttered  no 
criticism  of  the  charge.  In  another  case,  Hutson  v.  Hartley, 
where  the  same  presumption  was  under  consideration,  it  is 
stated  in  the  opinion  that  the  presumption  is  one  of  fact; 
whereas  the  trial-judge  charged  it  to  be  one  of  law.  Notwith- 
standing this  difference  of  opinion,  the  supreme  court  com- 
mended the  charge  as  clear  and  well  considered.  And  recently 
the  supreme  court,  in  Cole  v.  McClure,  stated  the  rule  as  a 
legal  presumption.  This  shows  that  a  presumption  may  be 
treated  as  one  of  law^  at  one  time,  and  of  fact  at  another. 
Thayer  says,  "that  as  matter  of  sound  administration,  the 
judges  will  not  at  all  times  press  their  rules  and  practices 
equally  far,  or  as  far  as  they  legally  might." 

Thayer,  Pre.   Treatise,  p.  334. 

(g)  Where  a  will  after  its  execution  remains  in  the  pos- 
session of  the  testator  until  his  death,  at  which  time  it  is 
found  among  his  papers  with  his  name  erased,  the  presump- 
tion is  that  the  testator  erased  his  name,  and  that  he  did  so 
with  the  intention  of  revoking  the  will. 

Crosby  V.  Crosby,  10  C.  C.   (N.S.)  57.  20  C.  D.  14. 

30.  PRESUMPTION   OF  PAYMENT. 

(a)  Both  at  common  law  and  in  equity,  after  the  lapse  of 
tw^enty  years  from  the  maturity  of  an  indebtedness,  a  pre- 
sumption of  payment  arises;  and  in  the  absence  of  rebutting 
evidence,  the  presumption  is  so  far  controlling  that  the  court 
may  dismiss  the  petition  or  direct  a  verdict. 

Wright  V.  TTnll,  S3  0.   S.  3S5,  397. 

See  Bissell  v.  Jaiulon,   16  O.  S.  498. 


§  31  IViETZLER'S    OHIO    TRIAL    EVIDENCE  32 

(b)  An  indorsed  note  in  the  hands  of  tlie  maker  after  due 
is  presumed  in  law  to  have  performed  its  office,  and  to  have 
been  paid  off  and  taken  up  by  the  maker.  But  no  such  pre- 
sumption arises  in  the  case  of  such  a  note  before  due ;  it  is 
then  a  matter  of  legal  presumption  that  the  note  is  unsatisfied, 
and  is  indorsed  and  placed  in  the  hands  of  the  maker  for  his 
accommodation, 

Erwin  v.   ShafFer.  0   0.   S.   43. 
Larimore  v.  Wells,  29  0.  S.   13. 

(c)  When  a  party  to  a  note,  or  a  stranger,  delivers  to  the 
bolder  of  it  the  amount  due  on  the  day  of  its  maturity,  and 
receives  the  note  from  the  holder,  and  there  is  nothing  further 
to  indicate  the  purpose  of  the  i)arties,  the  law  !)resumes  that 
the  transaction  was  intended  as  a  payment  of  the  note.  And 
from  the  payment  of  money,  there  is  a  legal  presumption  that 
it  was  paid  in  discharge  of  a  legal  obligation. 

Roots  V.  Kilbreath.   IS  Bull.   5S,   10  0.  D.  P..  20. 
Conahan  v.  Purcell.  0  l!ull.  122,  S  0.  D.  E.  161. 
See  Wright  v.  Gill,  12  0.  D.  12. 


31.  MISCELLANEOUS  PRESUMPTIONS. 

(a)  The  law  presumes  every  person  sane  until  the  con- 
trary is  shown.  And  in  a  criminal  case,  this  presumption  of 
sanity  serves  the  state  as  the  full  equivalent  of  ex])ress  proof, 
until  such  time  as  it  is  made  to  appear  by  a  preponderance  of 
evidence  that  the  defendant  was  insane  at  the  time  of  com- 
mitting the  crime  alleged  against  him. 

State  V.  Austin.  71   0.  S.  317. 
Loeffner  v.  State,  10  0.  S.  508. 

(b)  Every  child  begotten  m  lawful  wedlock  is  presumed 
in  law  to  be  legitimate.  Where  a  child  is  begotten  in  lawful 
wedlock  and  is  born  after  divorce,  before  such  child  can  be 
adjudged  a  bastard,  the  proof  must  be  clear,  certain,  and  con- 
elusive,  either  that  the  husband  had  no  powers  of  procreation, 
or  that  the  circumstances  were  such  as  to  render  it  impossible 
that  he  could  be  the  father  of  the  child.     Where  a  child  is 


33  PRESUMPTIONS  §  ;J2 

begotten  and  born  in  lawful  wedlock,  the  presumption  is  con- 
clusive. 

Powell  V.  State,  84  0.  S.  165. 
Johnson  v.   Dmllin-.   4  0.   1).  243,  3  X.   P.   196. 
Haworth  v.  Gill,  30  0.  S.  627. 

See  Vulgamore  v.  Yulganiore,  7  0.  App.  374,  27  0.  C.  A.  136,  28  C. 
D.  229. 

(c)  When  a  person  leaves  his  home  or  usual  place  of 
residence,  and  goes  to  parts  unknown,  and  is  not  heard  of  or 
known  to  be  living  for  the  period  of  seven  years,  the  legal 
presumption  arises  that  he  is  dead.  However,  there  is  no  pre- 
sumption either  way,  that  he  is  alive  or  dead,  until  the  period 
of  seven  years  has  elapsed.  This  presumption  is  not  conclu- 
sive, but  prima  facie  only. 

Rice  V.  Lumlcy,  10  0    S.  596. 

Rosenthal  v.  ilayhugh,  33  0.  S.  155. 

Golden   Rule  v.   Everding,   20   C.   C.   689,   11    C.   D.   419. 

Youngs  V.  Heffner,  36  0.  S.  232. 

(d)  There  are  some  prima  facie  cases  established  by  sta- 
tutory law.  There  are  a  few  in  the  negotiable  instruments 
act.  In  will  contests,  the  order  of  probate  makes  a  j^rima 
facie  case  that  the  will  so  probated  is  a  valid  last  will  and 
testament.  It  is  provided  by  statute  that  a  defect  in  a  car  or 
locomotive  shall  be  prima  facie  evidence  of  negligence.  It 
seems  that  a  statutory  prima  facie  case  is,  in  its  effect  on  the 
cause,  the  same  as  a  legal  presumption.  In  the  absence  of 
opposing  evidence,  it  becomes  conclusive ;  and  both  court  and 
jury  are  bound  b;-'  it. 

32.  EFFECT  OF  DECISIONS. 

(a)  The  foregoing  j)resiin:jtti()iis  have  been  stated  as  if 
they  were  real  presumptions  of  law  in  the  cases  cited;  but  this 
is  not  the  case  in  every  instance.  As  a  matter  of  fajct,  most 
presumptions  may  be  so  used  as  to  have  any  one  of  several 
different  meanings.  It  is  frequently  very  difficult  to  deter- 
mine the  effect  of  the  ruling  from  the  report  of  the  case.  In 
the  following  pages,  an  attempt  has  been  made  to  classify 
some  presumptions  according  to  the  effect  of  the  decisions.  A 
presumption  may  signify  either  that  the  evidence  on  a  i')oint 
was  sufficient  for  submission  to  the  jury,  or  that  the  evidence 

MErZLEU'S    TRIAL    EV. — 2 


§33  METZLER'S    OHIO    TRIAL    EVIDENCE  34 

made  prima  facie  proof  on  the  point  to  which  it  was  directed, 
and  that  it  therefore  supports  the  verdict. 

(b)  There  is  said  to  be  a  presumption  of  negligence  under 
the  doctrine  of  res  ipsa  loquitur,  when  there  is  adduced  evi- 
dence of  an  injury  occurring  as  the  proximate  result  of  an 
act  which  usually  would  not  have  injured  any  one,  if  done 
with  due  care.  See  Traction  Co.  v.  Holzenkamp,  74  0.  S.  37,9, 
where  the  trial  court  designates  this  presumption  as  one  of  law  ; 
but  the  jury  were  instructed  that  they  would  be  justified  in 
presuming  negligence,  w^hich  left  the  inference  optional  with 
the  jury.  The  supreme  court  affirmed  the  trial  court,  and  held 
that  the  evidence  in  the  case  was  sufficient  to  go  to  the  jury. 
In  the  case  cited  below,  the  court  went  further  and  held  that 
if  there  is  no  evidence  to  overcome  the  presumption,  it  is  the 
duty  of  the  court  to  direct  a  verdict  for  the  plaintiff. 

ITaltermaii  v.  TTansard.  22   C.   C.    (X.S.)    443,  4   0.   App.   26S. 

(c)  In  commenting  on  the  evidence  of  intent  as  sufficient 
or  insufficient,  courts  frequently  use  the  expression  that  every 
man  is  presumed  to  intend  the  natural  and  probable  conse- 
quences of  his  own  act;  but  this  is  not  a  legal  presumption. 
And  it  will  not  justify  a  charge  to  the  jury,  in  a  trial  on  an  in- 
dictment for  murder  in  the  second  degree,  that  the  defendant 
is  presumed  to  have  intended  to  kill  the  deceased  because  he 
purposely  did  the  injury  w^hich  caused  the  death. 

Miinday  v.  State,  5  C.  C.   (X.S.)    65fi,  16  C.  D.  712. 
Soe  also  Jones  v.   State,  51  0.   S.  331.  346. 
Bailus  V.   State,  S   C.  D.  526,   16   C.  C.  226. 

33.  OMNIA  PRAESUMUNTUR. 

(a)  There  is  a  maxim  that  all  things  are  presumed  to  have 
been  properly  done.  This  is  a  general  presumption  applicable 
to  many  subjects  of  law.  When  a  matter  adduced  in  evidence 
is  apparently  regular,  it  makes  prima  facie  proof;  and  if  the 
adverse  party  desires  that  the  court  believe  in  the  irregularity 
of  such  matter,  it  is  incumbent  on  him  to  prove  it.  This 
maxim,  which  means  only  that  regularity  makes  prima  facie 
proof,  will  be  treated  under  three  heads  as  follows: 

Validity  of  Official  Acts. 

Performance  of  Duty. 

Eegularity  of  Transactions. 


35  PRESUMPTIONS  §  34 

34.  VALIDITY  OF  OFFICIAL  ACTS. 

(a)  The  ordinary  rule  is  that  when  anj^  official  act  is 
shown  to  have  been  done  in  a  manner  substantially  regular, 
it  is  presumed  that  the  formal  requisites  for  its  validity  were 
complied  with.  In  favor  of  the  acts  of  public  officers,  the  law 
will  presume  all  to  have  been  rightly  done,  unless  the  circum- 
stances of  the  case  overturn  tliis  presumi)tion ;  and  conse- 
quently, acts  done  which  presupj)ose  tlie  existence  of  other 
acts  to  make  them  legally  operative,  are  i)resumptive  proofs 
of  the  latter. 

("b)  This  rule  has  been  announced  or  recognized  by  the 
supreme  court  of  this  state  in  many  cases.  In  Felch  v.  Ilodg- 
man,  62  0.  S.  312,  it  was  held  that  the  rule  applied  to  the 
action  of  the  trial  judge  in  the  allowance  and  signing  of  a  bill 
of  exceptions.  In  Coombs  v.  Lane,  4  0.  S.  112  and  Reynolds 
V.  Schweinefus,  27  0.  S.  311,  it  seems  that  the  court  states  the 
presumption  in  reasoning  that  a  prima  facie  case  was  made  in 
the  trial  court,  and  that  it  also  sustains  tliat  court  in  the  con- 
clusion reached.  This  is  the  usual  effect  of  the  decisions,  but 
there  are  some  exceptions. 

(c)  In  Ward  v.  Barrows,  2  0.  S.  241,  a  new  trial  was 
granted  because  the  rule  was  not  applied  by  the  trial  court  to 
the  acts  of  an  officer  in  an  old  tax  sale.  This  decision  goes 
further  than  any  other  that  could  be  found;  but  it  may  be 
accounted  for  on  the  theory  that  a  prima  facie  case  was  made, 
and  that  the  verdict  being  contrary  to  the  prima  facie  case, 
was  against  the  weight  of  the  evidence.  If  the  holding  was 
that  the  presumption  is  one  of  law,  it  is  probably  in  conflict 
with  a  much  later  case,  Rhodes  v,  Gunn,  35  O.  S,  387,  in  which 
it  was  held  that  a  tax  deed  is  not  even  prima  facie  evidence 
of  validity.  In  Walker's  American  Law,  at  page  611,  this 
presumption  is  listed  among  the  presumptions  of  fact,  which 
is  undoubtedly  correct,  notAvithstanding  the  ease  of  Ward  v. 
BarroAvs  may  be  to  the  contrary, 

(d)  Wigmore  says  that  this  presumption  of  validity  of 
official  acts  has  been  enforced  as  a  legal  presumption  in  a  few 
cases  of  ancient  proceedings  and  for  the  security  of  appar- 
ently vested  rights;  but  that  it  is  more  often  mentioned  than 


'§35  IMETZLER'S    OHIO    TRIAL    EVIDENCE  36 

enforced,  and  its  scope  as  a  presumption  of  law  is  indefinite 
and  hardl}'  capable  of  reduction  to  rules, 
Wigmore,  Evidence,  Section  2534. 


35.   DECISION   BELOW  SUSTAINED. 

(a)  In  the  following  cases,  the  holding  that  there  was  a 
presumption  in  favor  of  the  validity  of  the  official  acts  there 
under  consideration,  was  in  effect  that  such  acts  apparently 
being  regular  were  prima  facie  proof,  and  for  this  reason  sup- 
ported the  verdict  or  decision  of  the  court  below. 

(b)  Where  a  duly  and  legally  constituted  body,  such  as  a 

village  council,  has  acted,  the  presumption  is,  in  the  absence 

of  evidence  to  the  contrary,  that  it  has  acted  laAvfully  and  had 

"before  it  sufficient  facts  to  warrant  it  in  acting. 

Dalrymple  v.  State,  5  C.  C.    (X.S.)    1S5,   16  C.  D.  562. 

See  State,  ex  rel.,  v.  Railway,  11  C.  C.   (X.S.)   263,  20  C.  D.  632. 

(c)  The  presumption  is  that  a  petition  for  an  election 
under  the  Beal  law  in  due  and  legal  form  and  signed  by  forty 
per  centum  of  the  qualified  electors  was  presented  to  council 
as  required  by  statute,  when  it  appears  from  the  council  rec- 
ord that  a  petition  was  presented  asking  for  an  election,  that 
it  was  duly  acted  upon,  and  that  an  election  was  ordered  on 
a  certain  date. 

Dalryrr.ple  v.   State,  5  C.  C.    (X.S.)    1S5,   16  C.  D.   562. 

(d)  Where  it  appears  by  the  proceedings  of  a  city  coun- 
cil that  a  report  and  recommendation  of  the  board  of  city 
improvements  had  been  made  to  it,  and  that  thereu^jon  the 
city  council  proceeded  to  make  the  improvement  so  recom- 
mended, it  will  be  presumed,  until  the  contrary  is  shown, 
that  such  report  and  recommendation  was  duly  and  properly 
made. 

Ecynolds  v.   Schweinefus,  27  O.   S.  311. 

(e)  The  presumption  is  that  the  governor  found  in  issuing 
an  extradition  Avarrant  that  the  application  for  the  requisition 
was  made  in  good  faith  for  the  purpose  of  having  the  alleged 
fugitive  answer  to  the  offense  charged ;  and  that  the  governor 


37  PRESUMPTIONS  §  36 

acted  in  conformity  to  law  in  issuing  a  warrant  for  the  fugitive 
upon  a  requisition  of  the  governor  of  another  stale. 

In  re  Williams,  25  C.  C.   (X.S.)   249,  5  0.  App.  55,  27  C.  D.  3S5. 

Maloney   v.   Sheriff,   98   O.   S.  463. 

(f)  And  when  the  report,  the  survey,  and  the  plat  of  a 
road  have  been  recorded  as  directed  b}'  statute,  it  will  be  pre- 
sumed in  a  suit  for  injunction  that  all  was  done  which  the 
law  required  to  be  done,  where  the  road  has  long  been  opened 
and  used  with  the  acquiescence  of  landholders  adjoining. 

:\rcClel]and   v.   Miller,  2S   0.   S.  4SS. 

36.  REASONING  OF  THE  COURT. 

(a)  The  following  cases,  or  most  of  them,  were  decided  on 
appeal,  and,  of  course,  were  heard  de  novo  in  the  appellate 
court.  In  such  cases  it  is  not  alwa^-s  easy  to  determine  what 
the  court  had  in  mind  as  to  tlie  effect  intended  by  the  deci- 
sion ;  but  it  is  very  probable  that  in  most  cases  the  presump- 
tions are  merely  a  part  of  the  reasoning  of  the  court  on  prima 
facie  proof. 

(b)  The  presumption  is  that  the  deputy  state  supervisors 
of  elections  have  exercised  a  sound  discretion  in  letting  a 
contract  to  the  lowest  responsible  bidder;  and  in  a  suit  for 
injunction,  the  burden  is  on  the  plaintiff  to  show  a  state  of 
facts  which  would  constitute  an  abuse  of  discretion.  And 
when  the  ofificial  count  of  an  election  has  been  made  and  de- 
clared by  such  supervisors,  the  result  is  attended  w'ith  a  pre- 
sumption of  regularity. 

Pugh  Printing  Co.  v.  Supervisors,  22  C.  C.  5S4,   12  C.  D.  477. 
Dittriek  v.  Andrews,  7  O.  Apj).  30.3,  2S  O.  C.  A.  209.  29  C.  1).  73. 

(c)  Assessment  proceedings  also  are  ])resumed  regular. 
In  an  action  to  enjoin  the  collection  of  assessments,  the  pre- 
sumption is  in  favor  of  the  public  files  and  records  of  a  city 
council ;  and  the  burden  is  on  those  seeking  to  enjoin.  In  the 
absence  of  evidence  impeaching  such  records  and  files,  they 
should  be  sustained. 

ncndriekson   v.  Toledo,   13  C.  D.  25fi,  3  C.  C.    (X.S.)    355. 
See  also  Bolton  v.   Cleveland.  .35  0.  S.   319,  322. 
Spangler  v.   Cleveland,    43   0.    S.    526. 
Elston  V.  Findlay,  24  0.  D.  465. 


§37  METZLER'S    OHIO    TRIAL    EVIDENCE  38 

(d)  This  i^resuniption  sometimes  arises  in  the  construction 
of  pleadings.  For  example,  an  approval  of  an  official  bond 
of  a  justice  of  the  peace  signed  by  two  trustees  at  the  same 
date,  if  nothing  appears  to  the  contrary,  will  be  presumed  on 
demurrer  to  have  been  done  at  a  meeting  of  the  trustees ;  and 
such  approval  will  be  sufficient  compliance  with  the  statute. 

Place  V.  Taylor,  22  0.   S.  317. 

(e)  And  the  entry  of  an  election  by  a  widow  in  the  probate 
court  to  take  under  the  will  of  her  deceased  husband,  need  not 
show  affirmatively  that  the  probate  judge  had  explained  to  her 
the  provisions  of  the  will ;  and  in  the  absence  of  averment  and 
proof  to  the  contrary,  such  explanation  will  be  presumed. 

Davis  V.  Davis,  11  O.  S.  3S6. 

37.  PRIMA  FACIE  EVIDENCE. 

(a)  In  some  cases,  the  prima  facie  proof  made  by  official 
acts  apparently  regular  is  called  by  its  right  name.  The 
original  tally  sheet  of  a  municipal  election  duly  certified  by  the 
officers  thereof  is,  on  a  proceeding  in  quo  warranto,  prima 
facie  evidence  of  the  election  of  the  person  for  whom  it  shows 
a  majority  of  the  ballots  were  cast. 

State,  ex  rel.,  v.  Donnewirth,  21   0.  S.   216. 

(b)  And  the  record  of  a  board  of  equalization  is  only 
prima  facie  evidence  in  an  action  by  a  taxpayer  challenging 
the  legality  of  a  tax  or  assessment.  And  the  proceedings  of 
county  auditors  in  making  additions  to  the  valuation  of  prop- 
erty returned  for  taxation  make  only  a  prima  facie  case. 

Haggerty  v.  TTTiddleston,  GO  0.   S.   149. 
Musser  v.  Adair,  55  0.  S.  46,  473. 

(c)  The  maxim  ''omnia  praesurauntur  rite  esse  acta"  is 
not  of  universal  application.  It  is  not  to  be  extended  so  as  to 
make  it  cover  independent  facts,  as  distinguished  from  facts 
which  are  mere  incidents  of  others  duly  established.  An  audi- 
tor's deed  to  a  purchaser  at  a  delinquent  tax  sale  is  not  prima 
facie  evidence  of  a  good  and  valid  title,  unless  it  appears  that 
the  preliminary  proceedings  on  the  part  of  the  county  auditor 


39  PRESUMPTIONS  §  38 

and  the   treasurer  were   regular  and  in  conformity   ^vith   the 
statutes  governing  such  sales. 

Rhodes  v.  Gunn,  35  0.   S.  3S7,  o'Jo. 

Wolcott  V.   Holland,    17   C.   D.   71,  5   C.   C.    (X.S.)    604,   610. 

Cook  V.  Prosser,  7  C.  D.  619,  14  C.  C.   137. 

(d)  The  presumption  of  regularity  -was  denied  application 
to  the  acts  of  a  military  officer.  This  presumption  does  not 
entitle  a  colonel  of  the  National  Guard  to  have  a  prima  facie 
effect  of  legality  given  to  his  acts,  as  he  is  not  a  public  officer. 

State  V.   Coit,  S  0.   D.   62. 

38.  PERFORMANCE  CF  DUTY. 

(a)  It  is  sometimes  said  that  there  is  a  presumption  that 

a  man  did  his  duty.     In  other  words,  omission  or  failure  of  a 

man  to    do    his    duty  is  never  presumed ;  the  party  asserting 

such  omission  or  failure  must  prove  it.    It  is  a  settled  principle 

of  equity  that  whenever  a  duty  rested  upon  an  individual,  it 

will  be  presumed  that  he   intended  to   do   right   rather   than 

wrong,  to  perform  his  duty  rather  than  violate  it.     The  party 

who  claims  that  he  violated  his  duty  must  prove  it. 

Smith  V.  Fuller,  86  0.   S.  57,  60. 

See  Klausteirmeyer  v.  Trust  Co.,  89  0.   S.   1 12. 

(b)  "When  a  cestui  que  trust  has  for  a  long  time  been  in 
possession  of  lands  which  the  trustee  ought  to  have  conveyed 
to  him,  the  conveyance  may  be  presumed  ;  but  the  presump- 
tion has  no  existence  in  favor  of  one  who  attacks  the  rights  of 
another  holding  possession  adversely. 

Ilarman   v.  Kellcy,  14  Oh.   502,  509. 
Kinsman  v.   Loom  is,   11   Oh.   475,  477. 

(c)  And  in  an  action  at  law  for  wrongful  death,  it  will  be 
presumed  that  the  decedent  did  his  duty  and  supported  his 
wife.  The  plaintiff  in  this  case  offered  no  evidence  on  the 
point ;  but  in  the  absence  of  evidence  to  the  contrary,  such  a 
presumption  would  arise. 

Railway  v.  Ward,  2  C.  C.   (X.S.)   256,  15  C.  T).  .'^90. 

(d)  Where  a  person  occupied  tbo  double  relation  of  ad- 
ministrator of  a  decedent's  estate  and  guardian  of  the  minor 
heirs  of  such  decedent,  and  it  became  his  duty  as  such  admin- 


§  39  METZLER'S    OHIO    TRIAL    EVIDENCE  40 

istrator  to  pay   over  a  fund  in  his  hands  for  distribution  to 
himself  as  guardian  of  the  minor  heirs,  the  law  will  in  general 
presume  such  payment  to  have  been  made. 
Wilson  V.  Wilson,  17  0.  S.  150. 

t 

(e)  Proof  of  the  mailing  of  a  letter,  properly  stamped  and 
addressed,  affords  prima  facie  evidence  of  its  receipt  by  the 
person  to  whom  directed ;  and  this  applies  notwithstanding  the 
address  of  the  addressee,  may  have  been  lately  changed.  The 
well-known  facilities  and  practice  of  the  post-office  depart- 
ment in  such  matters  raises  a  presumption  of  delivery.  But 
this  presumption  may  be  rebutted. 

Judge  V.  Benefit  Assn.,  10  C.  C.    (X.S.)    473,  20  C.  D.   133. 
Hobson  V.  Insurance  Co.,  2  0.  D.  475,  2  N.  T.  2fl6. 
See  Choteau  v.  Eaitt,  20  Oh.  132.  146. 

(f)  In  an  action  for  wrongful  death  of  a  locomotive  engi- 
neer it  will  be  presumed,  in  the  absence  of  evidence  to  the 
contrary,  that  the  throwing  of  the  switch  whereby  two  trains 
were  given  the  same  track  and  came  into  collision,  was  in 
obedience  to  orders  to  the  switch-tender  from  some  one  super- 
ior in  authority  to  the  engineer ;  and  the  question  whether  the 
engineer  and  switch-tender  were  fellow-servants  becomes  im- 
material. 

Railway  v.  Woulfe,  15  C.  C.    (X.S.)    147.  24  C.  D.   123. 

(gf)  Where  a  trustee  deposits  trust-money  in  a  bank,  tak- 
ing as  evidence  thereof  a  certificate  of  deposit  certifying  that 
he  as  trustee  has  deposited  the  fund  payable  to  self  on  return 
of  the  certificate  properly  indorsed,  the  same  not  being  subject 
to  check,  and  no  stipulation  for  interest  being  made,  a  pre- 
sumption will  be  indulged,  in  the  absence  of  proof  to  the  con- 
trary, that  the  trustee  intended  to  perform  and  not  violate  his 
duty,  and  that  the  deposit  was  intended  as  a  special  and  not  a 
general  deposit. 

Sniitli   V.   Fuller,   8fi  0.   S.   57. 

39.  REGULARITY  OF  TRANSACTIONS. 

(a)  "Whenever  evidence  of  a  transaction  apparently  regu- 
lar is  adduced  by  a  party,  a  prima  facie  case  is  made ;  and 
the  court  will  not  call  upon  such  party  to  shoAv  that  the 
transaction  is  regular.  In  such  cases,  the  party  who  contends 
fi^ft  there  was  irregularity  of  any  kind  must  prove  it,  because 


41  PREGUMPTICNS  §40 

irregularity  will  not  be  presumed.  So  where  a  party  asserts 
that  there  was  fraud  in  a  transaction  apparently  regular,  he 
must  prove  it.  This  presumption  against  fraud  may  involve 
the  real  burden  of  proof. 

(b)  Where  it  is  claimed  by  the  defendant  in  a  suit  on  a 
})romissory  note  or  similar  instrument,  that  the  note  has  been 
altered  since  its  execution,  the  burden  is  upon  him  to  prove 
that  it  was  so  altered;  the  presumption  being,  in  the  absence 
of  anything  to  the  contrary,  that  any  alteration  appearing  on 
the  face  of  the  paper  was  made  at  or  before  the  time  of  its 
execution. 

Franklin  v.  Baker.   4S  0.  S.  206. 

(c)  A  marriage  solemnized  in  due  form  is  presumed  to  be 
lawful  until  some  enactment  annulling  it  is  produced  and 
proved  by  those  who  deny  its  validity.  This  is  a  prima  facie 
case,  for  it  was  shown  in  this  case,  that  the  woman  was  mar- 
ried and  lived  with  her  husband  for  years,  and  that  he  wafi 
still  living  at  the  time  of  her  second  marriage. 

Evans  v.  "Rpynolds.  .*?2  0.  S.   16.*?,  16.5. 

Cf.   Hanley   v.   State.   12   C.   C.   .584,   5   C.   T).   488.   480. 

(d)  Where  the  accommodation  endorser  of  a  note  offered 
to  pay  it  when  due  and  was  told  that  it  had  been  paid,  the 
presumption  is  that  he  would  have  proceeded  against  the 
makers  of  the  note  if  he  had  paid  it. 

Trust  Co.  V.  Campbell,  16  C.  C.    (X.S.)    348. 

40.  RULE  ON  BURDEN  OF  PROOF. 

(a)  The  rule  on  the  burden  of  proof  is  sometimes  put  in 
the  form  of  a  presumption  in  favor  of  the  one  denying.  It  is 
not  always  possible  to  determine  from  the  opinion  whether  the 
presumption  affects  the  real  burden  of  proof  or  the  duty  of 
producing  rebutting  evidence. 

(b)  When  under  the  law.  it  is  incumbent  on  the  defendnnt 

to    make    certain    proof,    the    presumption    is    stated    in    form 

favorable  to  the  plaintiff.    For  example,  in  an  action  for  libel, 

the  law  presumes  the  plaintiff's  character  to  be  good. 

Blnkesleo  v.  TTuprhe.s,  .50  0.   S.  400. 

Kahn  V.  Times  Star,  8  N.  P.  616,  10  0.  D.  599. 


§40  METZLER'S    OHIO   TRIAL    EVIDENCE  42 

(c)  When  under  the  law,  it  devolves  upon  the  plaintiff  to 
make  certain  proof,  the  presumption  is  stated  in  favor  of  the 
defendant.  So  when  one  is  appointed  and  commissioned  as  a 
police  officer,  his  acts  will  be  presumed  to  have  been  per- 
formed in  his  capacity  as  such  officer ;  and  if  the  plaintiff 
claims  that  the  officer  M^as  not  so  acting,  but  was  acting  as 
the  agent  of  defendant  corporation,  he  must  show  affirmatively 
that  such  was  the  case. 

Railroad  v.  Fieback,  87  0.  S.  254. 

(d)  The  presumption  is  that  every  prosecuti'on  is  faunded 
on  probable  cause  and  is  instituted  for  the  purpose  of  justice 
only.  This  means  that  in  an  action  for  malicious  prosecution, 
the  plaintiff  must  affirmatively  prove  the  existence  of  malice 
and  want  of  probable  cause. 

John  V.  BridgmaTi,  27  0.  S.  22.  39. 

(e)  A  party  who  has  done  only  that  which  the  law  author- 
ized him  to  do,  will  be  presumed  to  have  acted  in  a  lawful 
manner,  until  the  contrary  is  shown.  The  burden  of  proof  is 
on  the  party  claiming  that  an  injury  was  done,  to  show  that  it 
was  occasioned  by  negligence,  carelessness  or  wantonness. 

Titus  V.  Lewis,   33  0.   S.   304. 

(f)  The  existence  of  negligence  is  an  affirmative  fact;  and 
the  presumption  is,  until  the  contrary  appears,  that  every  man 
will  perform  liis  duty.  In  view  of  such  presumption  it  is  the 
general  doctrine  that  when  negligence  is  the  ground  of  an 
action,  it  devolves  upon  the  plaintiff  to  trace  the  fault  for  his 
injury  to  the  defendant;  that  he  must  give  some  affirmative 
evidence  from  which  there  may  be  a  logical  inference  of  negli- 
gence, and  the  mere  happening  of  an  accident  will  not  be  suffi- 
cient evidence  of  negligence  to  be  left  to  the  jury,  except 
when  the  doctrine  of  res  ipsa  loquitur  applies. 

Huff  V.  Austin,  46  0.  S.  386,  387. 
Traction   Co.  v.  Holzcnkamp,  74  0.   S.   379. 

(g)  It  is  sometimes  said  that  there  is  a  presumption 
against  negligence.  As  in  an  action  for  negligent  death,  it 
"was  said  that  the  decedent  is  presumed  to  have  used  reason- 
able care  for  his  own  safety,  in  the  absence  of  evidence  to  the 
contrary.     The  presumption   is  in  favor  of  the   one   denying. 


43  PRESUMPTIONS  §  41 

It  is  plain  that  this  presumption  against  negligence  is  another 

^vay  of  stating  that  the  one  alleging  negligence  must  prove  it. 

(.hiinkemoyer  v  .Railway,  19  C.  C.    (X  S.)    306,  3  0.  App.  62,  25  C.  D. 

liaihvay  v.  Crawford,  24  0.  S.  631,  636. 

(h)  A  court  may  charge  that  no  presumption  of  negligence 
arises  against  either  party  to  the  action.  This  means  that  at 
law  no  presumption  arises  in  the  first  instance  against  either 
party ;  but  it  may  arise  under  the  circumstances  shown  by  the 
evidence ;  and  this  meaning  the  charge  should  make  clear. 

Stevens  Co.  v.  Blum,  17  C.  C.    (X.S.)    115. 


41.  PRESUMPTIONS  OF  FACT. 

(a)  A  presumption  of  fact  is  a  conclusion  drawn  from 
circumstantial  evidence.  Presumptions  of  fact  and  logical 
inferences  are  identical.  Strictly  speaking,  they  are  not  pre- 
sumptions. They  must  be  derived  from  the  circumstances  of 
the  particular  case.  The  distinction  between  a  presumption  of 
fact  and  a  disputable  presumption  of  law  is  that  the  former 
is  a  question  for  the  jury,  while  the  latter  attaches  to  a  given 
state  of  facts  the  value  of  a  legal  prima  facie  case.  A  charge 
to  the  jury  as  to  a  disputable  presumption  of  law  should  be 
laid  down  as  a  binding  rule  in  the  absence  of  evidence  to  the 
contrary;  but  if  the  court  instructs  the  jury  as  to  a  presump- 
tion of  fact,  the  rule  must  be  laid  down  as  optional  w^ith  the 
jury,  Avhich  should  be  permitted  in  its  discretion  to  accept  or 
reject  the  conclusion. 

Hutson  V.  Ilartloy,  72  0.  S.  262.  260. 

Harrison   Co.  v.   P.lackor,   15  X.   P.    (X.S.)    377,  383. 

(b)  The  distinction  between  the  two  is  well  illustrated  by 
the  supreme  court  in  Methard  v.  State,  19  0.  S.  363,  in  which 
case  the  trial  court  in  its  charge  instructed  the  jury  in  regard 
to  a  presumption  of  fact  as  if  it  were  one  of  law.  The  supreme 
court  very  properly  criticised  the  charge  and  reversed  the 
judgment.     The  syllabus  of  the  case  is  as  follows: 

The  facts  that  a  building  was  burglariously  entered, 
goods  stolen  therefrom,  and  the  possession  by  the  accused  soon 


§  41  METZLER'S    OHIO    TRIAL    EVIDENCE  44 

thereafter  of  the  goods  stolen,  are  competent  evidence  to  go 
to  the  jury ;  and  with  other  circumstances  indicative  of  guilt, 
such  as  giving  a  false  account,  or  refusing  to  give  any  account 
of  the  manner  in  which,  or  the  means  by  which,  he  came  into 
possession  of  the  stolen  goods,  may  afford  a  strong  presump- 
tion- of  fact  of  the  guilt  of  the  accused,  and  warrant  the  jury 
in  finding  him  guilty  of  both  the  burglary  and  larceny.  But 
the  facts  of  burglary,  of  larceny,  and  of  possession  of  the 
f^tolen  goods  soon  thereafter  by  the  accused,  do  not  alone 
raise  a  presumption  of  law  that  he  is  guilty  of  both  the  burg- 
lary and  larceny. 

Methard  v.  State,  10  0.  S.  363. 

See  Carano  v.  State,  3  C.  C.    (X.S  )    620,  14  C.  D.  D.l,   100. 

JVIcGuire  v.  State,  3  C.  C.  551,  2  C.  I).  318. 

(c)  When  a  mere  logical  inference  is  stated  as  a  presump- 
tion, it  usually  signifies  that  tlie  evidential  fact  from  which  the 
inference  arose  was  relevant  and  could  not  be  excluded  on  the 
ground  of  irrelevancy.  The  rule  could  be  illustrated  by  many 
cases  from  the  rejiorts.  (See  cases  under  The  Presumption  of 
Continuance.)  The  following  case  is  given  as  an  example: 
In  the  trial  of  a  case  where  defendants  are  sued  on  a  note, 
the  period  of  several  years  during  which  the  note  remained  in 
the  hands  of  the  assignees  after  its  maturity  Avithout  any 
effort  on  their  part  to  collect  it,  and  the  solvency  of  the  prin- 
cipals for  several  years  after  the  note  became  due.  and  their 
subsequent  insolvency,  are  circumstances  proper  for  the  con- 
sideration of  a  court  or  jury,  as  raising  a  presumption  of 
payment. 

Eossman  v.  McFarland,  9  0.  S.  360,  3S3. 

(d)  A  logical  inference  stated  as  a  presumption  may  also 
signify  that  the  evidence  sustains  the  verdict.  The  following 
illustrates  this  kind  of  a  presumption  :  The  fact  that  a  pas- 
senger on  an  ocean  vessel  Avas  last  seen  about  ten  o'clock  at 
night,  when  the  steamer  was  in  mid-ocean,  and  was  not  seen 
or  heard  of  afterwards,  though  diligent  search  Avas  made  the 
next  morning,  is  sufficient  to  raise  a  verv  strong  presumption 
of  his  death,  and  justifies  a  jury  in  finding  that  he  is  dead. 

Insurance  Co.  v.  Rosch,  13  C.  D.  401,  3  C.  C.   (^^.S.)    156. 


45  PRESUMPTIIKS  §42 

42.  THE   PRESUMPTION   OF  CONTINUAfJCE. 

(a)  It  is  a  general  principle  that  when  a  condition  of 
things  is  once  shown  to  exist,  there  is  a  presnm])tion  that  it 
continues  until  the  contrary  is  shown.  Generally,  this  pre- 
sumption is  not  one  of  law,  but  of  fact;  and  when  such  a 
presumption  is  stated  by  the  court,  the  ruling  is  usually  on  a 
question  of  the  admission  or  rejection  of  evidence.  In  the; 
case  cited  below,  this  presumption  is  considered  in  the  reason- 
ing of  the  court ;  and  it  is  held  that  it  can  not  defeat  the  legal 
presumption  of  innocence. 

Walker,  American  Law.   H   Ed.   p.   611. 

Wickham   v.   Coyner,   12  C.   C.    (N.S.)   4:;\  2;t  C.  D.  Tfi.-). 

(b)  "Where  a  steamboat  is  shown  to  have  been  seaworthy 
at  the  time  she  was  insured,  and  no  intervening  circumstance 
occurs  to  render  her  unseaworthy,  her  seaworthiness  is  pre- 
sumed to  continue.  But  when  during  the  life  of  the  policy 
she  springs  a  dangerous  leak  without  apparent  cause,  a  new 
presumi)tion  arises,  that  of  unseaworthiness.  (Statement  in 
ruling  on  admissibility  of  evidence.) 

Insurance  Co.  v.  Tohin,  32  0.  S.  77. 

(c)  "Where  the  plaintiff  brings  suit  on  a  note  against  de- 
fendants as  partners,  he  may  prove  that  the  defendants  were, 
in  fact,  partners  three  months  before  the  date  of  tlie  note; 
for  the  presumption  would  be  that  they  continued  to  be  part- 
ners until  the  date  of  the  plaintiff's  note. 

Marts  V.  Siglrr,  3  0.  S.  358,  300. 

(d)  And  where  a  convict  who  has  been  in  the  penitentiary 
two  years  is  taken  therefrom  to  testify  as  a  witness  and  does 
so  testify,  it  is  competent  for  the  adverse  party  to  prove  that 
his  reputation  for  truth  and  veracity  was  bad  at  the  time  of 
and  previous  to  his  conviction  at  the  place  where  he  ther» 
resided,  as  the  former  state  of  things  is  presumped  to  continue. 

ITamiltnn  v.  State.  .34  0.  S.   S2,  R5. 

(e)  '^V^'hen  prior  insanity  is  once  shown,  there  is  a  pre- 
sumption of  more  or  less  force,  according  to  circumstances, 
that  the  same  condition  continued.  But  this  presumption  is 
not  a  prima  facie  presumption  where  the  insanity  is  shown  to 


§42  METZLER'S    OHIO    TRIAL    EVIDENCE  46 

be  four  years  before  the  commission  of  the  crime.     The  weight 
of  the  evidence  is  for  the  jury  in  such  cases. 
Wheeler  v.  State,  34  0.   S.  394,  396. 

(f)  Evidence  of  the  previous  insanity  of  the  accused  raises 
no  legal  presumption  of  his  insanity  at  the  time  he  committed 
the  criminal  act.  But  the  jury  may  consider  it  as  throwing 
light  upon  the  question  of  insanity  at  the  time  of  such  crim- 
inal act.  In  cases  Avhere  insanity  is  once  proved,  its  continu- 
ance may  be  presumed;  but  this  presumption  is  one  of  fact 
and  not  of  law.  Proof  of  prior  temporary  insanity  is  clearly 
not  sufficient  to  rebut  the  legal  presumption  of  sanity. 

State  V.  Austin,  71  0.  S.  317.  321. 

(g)  Nothing  is  better  settled  than  the  presumption  of  con- 
tinuance. But  a  possession  to-day  furnishes  no  jiresumption  of 
its  existence  yesterday.  And,  at  least,  where  it  stands  alone, 
the  proof  of  such  a  possession  does  not  even  tend  to  show  an 
earlier  one ;  and  it  is  therefore  not  admissible.  The  same  may 
be  said  of  condition  as  well  as  of  possession.  Evidence  tend- 
ing to  show  the  defective  condition  of  a  machine  several 
months  after  an  accident,  raises  no  presumption  of  a  defect  at 
the  time  of  the  accident.  Such  evidence  is,  therefore,  to  be 
excluded. 

Hutchinson  v.  Bank,  3  0.  S.  490,  493. 
Henkel  v.  Stahl,  9  C.  D.  397,  18  C.  C.  S31. 

(h)  The  presumption  of  continuance  is  seldom  found  to  be 
a  real  presumption  which  shifts  the  duty  of  producing  evi- 
dence. On  this  point,  however,  it  is  necessary  to  examine  two 
eases.  In  Insurance  Co.  v.  Tobin,  32  0.  S.  77,  it  is  stated  on 
page  92  that  this  presumption  shifts  the  burden  of  proof;  but 
the^  context  shows  that  the  general  subject  under  consideration 
was  the  nature  of  the  issue  and  the  evidence  admissible  there- 
under ;  and  the  decision  was  that  expert  opinion  evidence  was 
competent  (p.  93).  Therefore,  the  court  did  not  hold  that  this 
is  a  legal  presumption. 

There  is  another  case  on  this  point :  Supreme  Conclave  v. 
Fife,  16  C.  C.  (N.S.)  205.  Here  the  trial  court  charged  the  jury 
so  as  to  malce  it  a  presumption  of  law.  This  charge  was  sus- 
tained by  a  majority  of  the  reviewing  court;  but  it  was  held 


47  PRESUMPTIONS  §43 

that  the  presumption  was  rebutted  by  the  evidence  of  the 
party  in  whose  favor  the  presumption  arose,  and  the  ease  wat? 
reversed.  When  all  cases  are  considered,  the  inevitable  con- 
clusion is  that  the  great  weight  of  authority  in  Ohio  holds 
that  the  presumption  of  continuance  is  one  of  fact. 

43.  CONSTRUCTION  OF  WRITINGS. 

(a)  Rules  relating  to  the  construction  of  writings  are  fre- 
quently stated  in  the  form  of  presumptions.  It  is  sometimes 
stated  that  it  is  conclusively  presumed  that  a  writing  contains 
the  whole  contract,  which  means  that  parol  evidence  to  vary 
it  will  not  be  received.  And  when  parol  evidence  is  admissible 
to  explain  a  writing,  the  rule  is  sometimes  stated  as  a  disput- 
able presumption;  for  example,  it  is  presumed  that  a  deed 
evidences  a  sale,  but  this  presumption  may  be  rebutted  by 
showing  that  the  deed  was  given  to  secure  a  debt.  For  the 
general  rule  is  that  whenever  an  ordinary  presumption  arises 
in  the  construction  of  a  contract,  whether  written  or  oral, 
evidence  may  be  introduced  to  rebut  the  presumption.  As  to 
writings,  this  is  sometimes  stated  as  an  exception  to  the  rule 
forbidding  the  admission  of  parol  evidence  to  vary  a  writing. 

(b)  In  such  cases,  the  effect  of  the  ruling  is  not  to  attach 
a  legal  prima  facie  significance  to  evidence  of  facts,  but  to 
give  presumptively  a  certain  meaning  to  the  words  of  a  con- 
tract or  instrument  in  writing.  This  ruling  often  involves  the 
question  of  admissibility  of  evidence,  the  same  as  many  other 
so-called  presumptions,  as  the  party  who  contends  that  the 
presumed  meaning  uiid«r  the  rule  is  not  correct,  may  usually 
show  by  evidence  the  intention  of  the  parties. 

(c)  A  judgment  which  a  court  has  jurisdiction  to  render 
presumes  a  finding  by  the  court  of  all  things  necessary  and 
sufficient  to  support  such  judgment,  in  the  absence  of  a  record 
to  the  contrary.  And  where  only  a  part  of  a  record  is  given 
in  evidence,  that  part  of  it  which  relates  to  process  and  appear- 
ance being  by  agreement  of  parties  withheld,  the  court  will 
presume  that  all  parties  who  are  named  as  such  in  the  petition 
and  decree  were  properly  before  the  court. 

P.ly  V.   Smitli.   04  0.  S.    110. 

Welsh    V.    Cliilds.    17    O.   S.   31!). 

See  Moton  v.  Kesscns,   ilG  ().  S.  «09. 


§43  METZLER'S    OHIO    TRIAL    EVIDENCE  48 

(C)  Y\"hen  it  does  not  other^yise  affirmatively  appear  from 
the  record,  it  will  be  conclusively  presumed,  whenever  a 
■.-.iUiestic  judgment  of  a  court  of  general  jurisdiction  is  drawn 
in  question  in  any  collateral  way,  that  the  court  regularly  ac- 
quired and  lawfully  exercised  its  jurisdiction  over  the  parties ; 
and  the  record  of  an  inferior  court  imports  absolute  verity 
when  it  shows  on  its  face  that  such  jurisdiction  was  obtained ; 
and  neither  the  presumption,  nor  recitals  of  the  record,  can  be 
contradicted  in  such  a  proceeding,  by  extrinsic  evidence. 

Kingsborougli  v.   Tousley,   56   0.   S.   450,   455. 

(e)  In  the  construction  of  Avills  a  presum^Dtion  prevails, 
especially  in  items  not  residuary,  that  where  a  more  general 
description  is  coupled  with  an  enumeration  of  things,  the  de- 
scription shall  cover  only  things  ejusdem  generis.  This,  how- 
ever, is  only  a  rule  of  presumption  and  must  yield  to  the 
testator's  intent  as  gathered  from  the  whole  instrument,  but 
vrhere  the  presumption  is  favored  and  supported  by  the  evident 
intention  of  the  testator  as  developed  from  a  consideration  of 
all  the  parts  of  the  instrument,  then  such  rule  of  presumption 
should  be  applied  to  the  matter  in  question. 

Creamer  v.  Harris,   90  0.  S.   160. 

(f)  Where  a  subsequent  gift  is  made  to  a  child,  or  one  to 
whom  the  testator  stands  in  loco  parentis,  and  the  gift  is  of 
the  same  character  or  for  the  same  purpose  as  the  legacy,  it 
will  be  presumed  to  be  an  ademption  of  the  legacy  pro  tanto 
in  the  absence  of  an  expressed  intention  to  the  contrary  shown 
by  the  will  or  by  extrinsic  evidence. 

Ellard  v.   Ferris,  91   O.  S.   339. 

(g)  In  a  will  contest  a  presumption  arises  that  the  will  was 
drawn  in  accordance  with  instructions  given  by  the  testatrix 
and  was  read  to  him  and  explained  and  found  by  him  to  be 
expressive  of  the  instructions  so  given. 

Morris  v.  Osborn,  27  0.  C.  A.   161,  29  C.  D.  280. 

(h)  "When  the  creditor  in  an  original  contract  has  received 
a  mortgage  covering  the  entire  debt,  and  a  personal  guaranty 
on  a  part  of  it.  the  presumption  is.  in  the  absence  of  circum- 
stances showinrr  the  fontrarv,  that  he  has  taken  the  personal 
guaranty  as  additional  protection  for  his  debt.     This  presump- 


49  PRESUMPTIONS  §  43 

tion  is  strengthened  where  it  appears  that  the  creditor,  at  the 
inception  of  the  debt  guaranteed  by  the  surety,  refused  to  part 
with  the  property,  the  consideration  for  the  notes  signed  by 
the  surety,  without  such  personal  security. 
Advance  Thresher  Co.  v.  Hogan,  74  0.  S.   307. 

(i)  "Where  a  son  executed  a  note  in  favor  of  his  mother 
and  paid  interest  thereon,  there  is  a  presumption  raised  that 
the  money  evidenced  by  the  note  was  received  by  him  as  a 
loan.  But  the  presumption  raised  may  be  overcome  by  evi- 
dence as  to  the  intention  of  the  parties  at  the  time  of  the 
transaction  and  thereafter. 

Hicks  V.  Hicks.  9  C.  C.    (N.S.)    413,  19  C.  D.  628. 

(j)  Between  the  parties  to  a  sale  of  specific  goods,  espe- 
cially where  the  price  has  been  paid,  a  presumption  arises  that 
the  title  has  passed,  without  a  delivery  of  the  goods.  Such  a 
presumption  does  not  ordinarily  arise  as  against  creditors  or 
innocent  purchasers  from  the  vendor;  but  as  to  such  thii'd 
parties  there  must  be  not  only  a  formal  delivery  to  the  vendee 
claiming  the  goods,  but  there  must  be  an  actual  and  visible 
change  of  possession. 

Piano  Co.  v.  Piano  Co.,  85  0.  S.  196. 

(k)  The  presumption  that  a  tenant  holding  over  after  the 
expiration  of  a  yearly  term  is  a  tenant  from  year  to  year  is 
rebuttable;  and  to  rebut  this  legal  presumption  the  parties  are 
permitted  to  prove  what  their  true  intention  was,  where  the 
tenant  remained  in  possession  after  the  expiration  of  his  former 
term  under  a  parol  contract  for  a  monthly  tenancy,  and  the 
landlord  acquiesced  therein. 

BumiHer  v.  Walker.   95   O.   S.   344. 

(1)  In  the  courts  of  this  state  the  presumption  obtains  that 
the  law  of  the  forum  controls  the  rights  of  the  parties  to  the 
litigation.  Tf  it  be  claimed  that  the  law  of  another  state  con- 
trols, then  the  law  of  that  state  must  be  pleaded;  and  when  no 
such  issue  is  joined  in  the  pleadings,  evidence  will  not  be  re- 
ceived either  to  prove  or  disprove  the  same,  but  the  presump- 
tion will  obtain  that  the  law  of  the  forum  applies. 

Railroad  Co.  v.  Welsh,  89  0.  S.  81. 


§44  METZLER'S    OHIO    TRIAL    EVIDENCE  50 

44.  CONCLUSIVE   PRESUMPTIONS. 

(a)  When  the  term  "presumption  of  law"  is  used  it  gener- 
ally means  one  that  may  be  rebutted;  but  there  is  another 
presumption  to  which  the  term  may  be  and  frequently  is 
applied.  This  one  may  not  be  rebutted  and  is  therefore  con- 
clusive. Conclusive  presumptions  of  law  are  pure  legal  as- 
sumptions. They  are  not  evidence,  but  a  part  of  the  sub- 
stantive law.  For  example,  one  of  the  laws  relating  to  crimes 
is  that  a  child  under  seven  years  of  age,  when  accused  of 
crime,  is  conclusively  presumed  incapable  of  committing  an 
act  with  criminal  intent. 

(b)  The  so-called  presumption  that  every  person  knows 
the  law  is  generally  conclusive;  but  a  party  affected  thereby 
should  be  permitted  to  rebut  the  presumption  where  an  instru- 
ment by  a  mistake  of  the  parties  as  to  the  legal  effect  of  the 
terms  used,  fails  to  carry  out  their  intention.  And  the  pre- 
sumption is  not  a  rule  of  universal  application.  It  is  not 
always  applicable  to  trustees :  and  it  probably  does  not  apply 
to  the  law  of  the  jurisdiction  of  courts. 

Miller  v.  Procter,  20  0.  S.  442. 

Evants  v.  Strode,   11  Oh.  480,  488. 

In  re  Carson,  12  0.  D.  565,  568. 

Ratterman  v.  Phipps,  3  N.  P.  69.  4  0.  D.  453,  456. 

(c)  This  presumption  is  a  perversion  of  the  maxim,  "igno- 

rantia  legis  neminem  excusat."  which  means  that  ignorance  of 

law  is  no  excuse  for  its  violation.     The  principle  of  the  maxim 

applies  to  the  exceptions  as  well  as  to  the  rule  itself,  and  to 

the  common  law  as  well  as  to  the  statute  law.     It  is  respected 

in  equity  as  well   as  in  law.     Any  other  rule  would  offer  a 

strong  inducement  to  parties  to  rely  on  voluntary  ignorance 

of  their  legal  rights. 

Pvoth  V.  State.  51  0.  S.  209.  212. 
Morgan  v.  Lewis.  4()  O.  S.  1.  9. 
Rindskoff  v.   Doman.  28  0.  S.   516.  520. 

(d)  So  where  a  contractor  improves  a  street  under  a  con- 
tract whereby  Jie  is  to  receive  in  payment  for  his  work  an 
a.ssignment  of  the  assessments,  he  is  presumed  to  have  known 
the   law    of   assessments.      And    persons    dealing    with    school 


51  PRESUMPTIONS  §44 

boards  are  presumed  to  know  that  their  powers  are  only  those 

expressly  given,   and  that  no   rights   can  be   secured  by   an/ 

contract  not  clearly  authorized  by  law, 

^Yelke^  v.  Toledo,  18  0.  S.  452,  455. 

State,  ex  lel.,  v.  Freed,  G  C.  U.  55U,   10  C.  C.  29-r. 

(e)  Other  examples  of  conclusive  presumptions  are  to  be 
found  in  the  law  of  estoppel.  In  the  reports,  estoppels  are 
frequently  called  conclusive  presumptions.  Examples  of  this 
class  may  also  be  found  in  the  statutes  of  limitation.  In  all 
cases  in  which  a  statute  of  limitation  operates,  it  bars  recov- 
ery. There  is  a  manifest  distinction  between  those  cases 
where  length  of  time  operates  as  a  bar  to  an  action  and  those 
in  which  it  can  be  used  only  as  matter  of  evidence.  In  the 
latter,  the  jury  considers  it  with  all  other  circumstances;  in 
the  former,  it  may  be  pleaded  in  bar  and  is  conclusive.  For 
instance,  when  a  party  pleads  the  statute,  and  the  time  limit 
of  the  statute  has  actually  expired,  the  adverse  party  can  not 
question  the  rule.  But  if  the  time  fixed  by  the  statute  has 
not  expired,  this  may  be  shown. 

See  Allen  v.  Everly,  24  O.  S,  97,  111. 


CHAPTER  IV. 
THE  BURDEN  OF  PROOF. 

45.  General  rule. 

46.  Denial  in  answer. 

47.  New  matter  in  answer. 

48.  New  matter  in  reply. 

49.  Denial  and  new  matter. 

50.  Anticipating  a  defense. 

51.  Nature  of  new  matter. 

52.  Proof  of  defenses  to  notes. 

53.  Proof  of  performance. 

54.  Proof  of  a  single  fact. 

65.  Open  and  close — General  principles. 

56.  Open  and  close — Illustrations. 

57.  Open  and  close — Error   in   ruling. 

58.  Rebutting  evidence. 

59.  Proper  rebuttal 

45.  GENERAL  RULE. 

(a)  The  general  rule  is  that  the  burden  of  proof  rests  on 
the  party  holding  the  affirmative ;  and  this  is  so  especially 
where,  from  the  nature  of  the  case,  the  facts  alleged  must  be 
peculiarly  within  his  own  knowdedge.  The  rule  is  sometimes 
stated  in  a  form  similar  to  the  statute,  to  wit:  The  burden  of 
proof  is  on  the  party  who  would  be  defeated  if  no  evidence 
were  offered  on  either  side.  This  rule  is  incomplete,  and  will 
not,  without  the  aid  of  the  general  rule,  determine  the  ques- 
tion as  to  wdiich  party  has  the  burden  of  proof.  The  rule 
really  states  one  of  the  effects  of  the  general  rule;  namely, 
that  the  one  holding  the  burden  of  proof  will  be  defeated  if 
no  evidence  is  offered. 

Ferguson  v.  Gilbert.  16  0.  S.  SS. 
Commissioners   v.   Whislcr,   82   0.   S.   234,  235. 
See  Section   11447,   General   Code. 

46.  DENIAL  IN  ANSWER. 

(a)     When  the  defendant  makes  a  special  denial,  the  plain 
tiff  must  prove  every  material  allegation  of  the  petition  denied 

O  -J 


53  THE    BURDEN    OF    PROOF  §47 

by  the  answer.  And  when  the  answer  is  a  general  denial,  the 
plaintiff  holds  the  affirmative  of  the  issue;  and  the  burden  is 
on  him  to  prove  it. 

Paint  Co.  v.  Bank,  9  C.  C.    (N.S.)    150,  19  C.  D.  435. 
Walsh  V.  Barton,  24  0.  S.  28. 
Ferguson  v.  Gilbert,  16  0.  S.  88,  95. 
Coston  V.  Paige,  9  0.  S.  397. 

(b)     If  a  writing  is  incorporated  in  a  petition  when  it  is 
not  required  by  good  pleading,   a   general  denial  places  the 
burden  of  proof  on  the  plaintiff,  notwithstanding  it  involves 
a  denial  of  allegations  shown  by  such  writing  to  be  true. 
Leedle  v.  Christie,  15  C.  C.   (X.S.)   385,  24  C.  D.  572. 

47.  NEW  MATTER  IN  ANSWER. 

(a)  Where  the  defendant  can  not  deny  the  averments  of 
the  petition,  and  he  sets  up  other  and  new  matter  as  an  affirm- 
ative defense  which  constitutes  the  only  issue  on  which  the 
ease  goes  to  trial,  the  defeudant  has  the  burden  of  proof.  But 
where  new  matter  in  the  answer  is  not  denied  by  the  reply,  it 
must  be  taken  as  true. 

Harris  v.   Carlisle,  7  Oh.  Pt.  2,  144. 

Organ  Co.  v.  Biggs,  22  C.  C.  392,  12  C.  D.  497. 

Fewster  v.  Goddard  25  0.  S.  276. 

Stone   Co.  v.  Whigham,   23   C.  C.    (N.S.)    529. 

Titus  V.  Lewis,  33  0.  S.  304. 

(b)  In  an  action  by  a  depositor  to  recover  the  balance  of 

a  savings   account,   the   bank   has   the  burden   of  proving   an 

alleged  payment  or  withdrawal  by  the  depositor.     Tlie  burden 

is  not  on  the  depositor  to  show  the  balance  claimed,  and  that 

payment  has  not  been  made. 

Robinson   v.  T'pton.   12   C.  C    fy.S.)    314.  21    C.  T).   ?,?>0. 
See  Bank  Co.  v.  Cereguti,  21   C.  C.   (N.S.)  38,  25  C.  D.  303. 
Cf.  Smith  V.  Bank,  13  C.  C.   (N.S.)   122,  22  C.  D.  842. 

(c)  Where  an  action  is  brought  for  damages  oti  account 
of  false  arrest  and  imprisonment,  the  burden  is  on  the  arrest- 
ing officer  to  show  that  such  a  state  of  facts  existed  as  justi- 
fied him  in  making  the  arrest. 

Tracy  v.  Coffey,  8  C.  C.    (X.S.)    88,   18  C.  D.  579. 
See  also  Reinhard  v.  City,  49  0.  S.  257,  66. 


§  47  METZLER'S   OHIO    TRIAL    EVIDENCE  54 

(d)  In  an  action  by  a  servant  against  the  master  for  dis- 
charging him  before  the  expiration  of  his  term  of  service,  the 
master  must  aver  and  prove  that  the  discharge  was  for  reason- 
able cause.  It  is  error  to  charge  that  the  burden  of  proof 
rests  upon  the  servant  to  show  that  the  discharge  was  with- 
out any  just  cause. 

Baird  v.  Telephone  Co.,  10  C.  C.    (X.S.)    163,  20  C.  D.   107. 

(e)  In  an  action  for  an  agent's  commissions,  the  defense 
of  dual  agency  can  not  be  shown  under  a  general  denial,  but 
must  be  specially  pleaded ;  and  when  so  pleaded,  the  burden 
of  proof  is  on  the  defendant  to  establish  it. 

Fugman  v.  Trostler,  24  C.  C.    (X.S.)   521. 

(f)  An  allegation  in  the  answer  of  an  insurance  company 
that  certain  statements  made  by  the  insured  were  Avillfully 
false,  with  a  denial  thereof  in  the  reply,  imposes  upon  the  de- 
fendant the  burden  of  proving  such  falsity. 

Insurance  Co.  v.  Barnes,  1.5  C.  C.  (N.S.)  407,  25  C.  D.  380. 

(g)  It  is  a  general  rule  that  a  defendant  must  insist  on 

the  statute  of  limitation  as  a  bar  by  demurrer  or  answer  in 

order  to  obtain  the  benefit  of  the  statute.     A  general  denial 

Avill  not  raise  the  question.     But  this  rule  does  not  apply  in 

ejectment. 

Towsley  v.  Moore,  30  0.  S.  184. 
Kelly  V.  Wiseman,  2   Disney  418. 
Kyser  v.   Cannon,  29  0.   S.   359. 
Rhodes  v.  Gunn,  35  0.  S.  387,  91. 

(h)  In  an  action  under  the  code  for  the  recovery  of  real 
estate,  the  legal  title  of  which  is  in  the  plaintiff,  a  defense 
grounded  on  an  equitable  title  and  right  of  possession  under 
it  in  the  defendant,  is  new  matter  and  must  be  pleaded. 

Powers  V.  Armstrong.  36  0.  S.  357. 

Stewart  v.  Hoag,  12  0.  S.  623. 

(i)  Release  as  a  defense  does  not  negative  a  plaintiff's 
cause  of  action,  but  it  is  a  bar  to  a  judgment;  and  for  this 
reason  the  burden  of  proof  to  establish  the  release  is  upon  the 
defendant. 

Perrv  v.  O'Neil,  78  0.  S.  200,  25. 


55  THE  BURDEN  OF  PROOF  §49 

48.  NEW    MATTER    IN    REPLY. 

(a)  If  the  defendant  sets  up  in  his  answer  new  matter  as 
an  estoppel,  and  the  plaintiff  relies  on  a  record  of  a  former 
adjudication  of  the  same  matter,  he  should  plead  and  prove 
the  former  judgment. 

Fanning  v.   Insurance  Co.,  37  0.  ?>.  .'?44. 

(b)  Where  in  an  action  for  personal  injuries,  the  defend- 
ant pleads  payment  and  release,  and  the  plaintiff's  reply  does 
not  deny  the  payment,  but  avers  that  the  release  was  fradu- 
lently  obtained,  the  burden  is  on  the  plaintiff  to  sustain  this 
new  matter  in  avoidance. 

Spronk  v.  Addvston   Co.,  10  C.  D.  675,   19  C.  C.  714. 
But  see  Perry  v.  O'Xeil,  78  0.  S.  200. 

(c)  When  the  answer  of  a  surety  sets  up  that  an  exten- 
sion of  time  was  given  to  the  principal  without  the  consent  of 
the  surety,  he  must  make  this  appear  by  a  preponderance  of 
evidence.  When  the  creditor  admits  that  the  extension  was 
without  the  knowledge  or  consent  of  the  surety,  and  relies 
upon  a  subsequent  promise  of  the  surety  to  pay  if  the  prin- 
cipal does  not,  the  burden  of  proof  is  upon  the  creditor. 

Bramhle  v.  Ward,  40  0.  S.  267. 

Schmidt  v.  Cordes,  2  C.  S.  C.  R.  294,  13  0.  D.  R.  911. 

49.  DENIAL  AND  NEW  MATTER. 

(a)  It  is  a  general  rule  that  when  a  defendant  makes  a 
denial  and  at  the  same  time  pleads  new  matter,  the  plaintiff 
has  the  burden  of  proof  on  the  issue  raised  by  the  denial ;  and 
the  defendant  assumes  the  burden  on  the  new  matter  if  it  is 
denied.  The  same  principle  applies  when  the  plaintiff  pleads 
both  in  the  reply.  Plaintiff's  denial  places  the  burden  of 
proof  on  the  defendant  to  prove  every  material  allegation 
denied;  and  new  matter  alleged  in  a  reply  will  be  deemed 
controverted  by  the  adverse  party  as  upon  a  denial  or  avoid- 
ance as  the  case  may  require. 

Section  11378,  Ceneral   Code. 
Section   11329,  General   Code. 


§  51  METZLER'S   OHIO   TRIAL    EVIDENCE  56 

50.  ANTICIPATING  A  DEFENSE. 

(a)  In  some  cases  the  burden  of  proof  of  the  issue  may  be 
either  on  the  plaintiff  or  on  tlie  defendant,  depending  on  the 
form  of  the  pleadings.  For  instance,  in  an  action  on  a  note 
for  necessaries  furnished  to  an  insane  person,  the  plaintiff 
may  declare  on  the  note  generally  without  disclosing  the 
incapacity  of  the  defendant.  Then  it  is  a  complete  bar  to 
plead  the  defendant's  incapacity  at  the  time  of  the  making  of 
the  note;  and  this  the  defendant  must  prove  if  averred  and 
denied.  However,  the  plaintiff  may  take  another  course.  He 
may  anticipate  the  defense  by  alleging  that  the  defendant 
was  insane  when  the  note  was  executed,  but  that  it  was  given 
for  necessaries.  If  this  latter  allegation  is  denied,  it  is  incum- 
bent on  the  plaintiff  to  prove  it. 

Hosier  v.  Beard,  54  0.  S.  398,  407. 


51.  NATURE  OF  NEW  MATTER. 

(a)  Facts  stated  in  an  answer  which  could  have  been 
given  in  evidence  under  a  denial  of  the  averments  in  the  peti- 
tion, do  not  constitute  new  matter.  In  other  words,  whenever 
the  legal  effect  of  the  allegations  in  an  answer  is  a  mere 
denial  of  the  averments  in  the  petition,  such  allegations  can 
not  be  regarded  as  new  matter. 

Corry  v.  Campbell,  2.5  0.  S.  134,  40. 
Insurance  Co.  v.  Kelly,  24  0.  S.   345. 

(b)  In  an  action  to  recover  damages  for  the  breach  of  a 
contract,  averments  in  the  answer  setting  up  a  different  con- 
tract are  immaterial,  except  as  they  operate  to  deny  the  mak- 
ing of  the  one  sued  on ;  and  they  do  not  constitute  new  matter. 
The  burden  remains  on  the  plaintiff  to  prove  the  contract  as 
alleged  in  the  petition. 

Simmons  v.  Green,  35  0.  S.  104. 

Fiedeldey  v.  Reis,  12  Bull.   771,  9   0.  D.  R.  296. 

List  &  Son  Co.  v.  Chase,  80  0.  S.  42. 

Leisy  v.  Zuellig,  7  C.   C.   423,   6  C.  D.   175. 

Findlay  Bros.  Co.  v.  Eiser,  17  C.  C.   (N.S.)    406. 

(c)  Where  the  petition  states  a  cause  of  action  for  money 
had  and  received,  and  the  defendant  in  his  answer  admits  the 


57  THE    BURDEN    OF    PROOF  §  51 

receipt  of  the  amount,  but  alleges  that  the  sum  was  received 
in  advance  upon  a  contract  which  the  plaintiff  has  violated, 
the  burden  of  jn-oof  is  upon  the  plaintiff.  The  statements  in 
the  answer  can  not  be  i-egarded  as  matter  in  confession  and 
avoidance,  but  rather  as  a  statement  of  facts  showing  the 
allegations  of  the  petition  to  be  untrue. 

McXutt  V.  Kauffman,  26  0.  S.  127,  30. 

See  Schmalstig  v.  Taft,  19  N.  P.   (N.S.)   51.3,  27  O.  D.  313 

(d)  When,  by  way  of  answer  to  a  petition  in  the  short 
form  on  an  account  for  services  rendered,  the  defendant,  in 
addition  to  pleading  the  general  denial,  further  alleges  that 
the  services  performed  by  the  plaintiff  Avere  rendered  and 
performed  by  him  under  an  express  contract,  the  terms  of 
%vhich  preclude  the  recovery  of  compensation  therefor,  such 
averments  do  not  constitute  an  affirmative  defense  of  new 
matter,  but  is  merely  a  denial.  But  if  the  defense  admits  the 
services  under  a  special  contract  and  pleads  payment,  it  is  in 
legal  effect  an  affirmative  defense,  the  burden  of  maintaining 
which  is  on  the  defendant. 

Dykeman  v.  Johnson,  83  0.  S.  126. 
Sanns  v.  Xeal,  52  0.   S.   56. 

(e)  In  an  action  on  a  contract,  where  the  answer  avers 
that  the  secretary  of  the  company  had  no  authority  to  make 
the  contract  sued  on,  the  answer  must  be  regarded  as  a  denial 
and  not  as  new  matter. 

Insurance  Co.  v.  Kelly,  24  0.  S.  345,  58. 

(f)  In  an  action  on  a  contract,  consideration  must  be 
averred  and  proved  by  the  plaintiff.  And  if  the  answer  de- 
tails facts  that  show  a  want  of  consideration,  it  is  not  new 
matter;  and  the  burden  of  proof  remains  on  the  plaintiff. 

Piatt  V.  Scribner,  9  C.  T).   771,  18  C.  C.  452. 

(g)  An  answer  denying  that  the  defendant  committed  an 
act  charged  in  the  petition,  and  alleging  that  it  w^as  com- 
mitted by  a  third  person,  is  not  a  plea  in  confession  and 
avoidance,  but  merely  a  special  denial. 

nolTman  v.  Oorrlon.  15  0.  S.  211,  5. 
Cf.  Ridenour  v.  Mayo,  29  0.  S.   138. 


§52  METZUER'S    OHIO    TRIAL    EVIDENCE  58 

(h)  In  an  action  for  the  recovery  of  damages  for  the 
alleged  wrongful  seizure  and  conversion  of  goods  to  which  the 
plaintiff  claimed  title,  the  defendant  answered  simply  alleging 
fraud  in  the  assignment  under  which  the  plaintiff  claimed. 
This  did  not  admit  that  the  plaintiff  ever  had  title  to  the 
goods,  and  was,  in  effect,  only  a  special  denial  of  the  title 
alleged  in  the  petition.  This  state  of  pleading  gave  the  affirm- 
ative of  the  issue  to  the  plaintiff. 

Beatty  v.  Hatcher,  1.3  O.  S.   115.  9. 

(i)  Where  a  petition  is  filed  to  recover  real  property,  and 
the  answer  denies  the  title  alleged  in  the  ])etition,  other  de- 
fenses in  the  answer  setting  up  title  in  the  defendant  are  not 
material,  as  the  questions  thus  sought  to  be  presented  properly 
arise  on  the  trial  under  the  general  denial  of  title  in  the 
plaintiff. 

Rhodes  V.  Gimn,  35  O.  S.   387. 
Kyser  v.   Cannon,  29   0.   S.   359. 

(j)  It  is  true  as  a  general  rule  that  matters  which  may 
be  given  in  evidence  under  the  general  issue  should  not  be 
specially  pleaded.  There  is  an  exception,  however,  when  by 
pleading  the  facts  in  the  answer  an  issue  is  tendered  which  is 
much  narrower  than  the  general  issue ;  and  the  issue  thus 
tendered  involves  all  the  facts  which  are  in  dispute  between 
the  parties.  The  prime  object  in  pleading  is  to  narrow  the 
controversy  by  joining  issue  only  upon  such  material  facts 
as  are  really  in  dispute.  Therefore,  an  answer  that  the  de- 
fendants who  are  sued  as  an  association  were  and  are  a  cor- 
poration, and  that  the  contract  sued  on  is  a  corporate  one, 
may,  though  provable  under  a  general  denial,  be  regarded  as 
setting  up  new  matter  in  defense,  and  not  as  stating  mere 
evidence  disproving  the  allegations  of  the  petition. 

Ridenour  v.  Mayo,  29  O.  S.  138,  145. 

52.  PROOF  OF  DEFENSES  TO   NOTES. 

(a)  Where  in  a  suit  upon  a  promissory  note,  the  defense 
is  that  the  note  was  given  or  obtained  without  valuable  con- 
sideration, the  plaintiff  has  the  affirmative  of  the  issue,  and 


59  THE    BURDEN    OF    PROOF  §  53 

the  burden  of  proof  rests  upon  him.  The  same  rule  applies 
Avhere  the  answer  allo«res  that  the  defendant  did  not  deliver 
the  note. 

Ginn  v.  Dolan,  81  0.  S.   121. 

Bode  V.  Werner,   16  C.  D.  206,  4  C.  C.    (X.S.)    158. 
Woodbury  v.  Bollmeyer,  20  C.  C.    (X.S.)    113. 
Cf.  Ellen  V.  Thrasher,   16  C.  C.    (X.S.)    469. 

(b)  Where  the  defendant,  in  an  action  on  a  note,  denies 
that  the  plaintiff  became  the  owner  in  good  faith  before  due, 
but  on  the  contrary  was  aware  of  infirmity  in  the  note,  and 
that  defenses  would  be  interposed  thereto,  and  testimony  is 
offered  in  support  of  these  allegations,  the  burden  of  proof  is 
cast  upon  the  plaintiff  to  establish  his  title,  if  he  has  not  already 
done  so,  by  affirmative  proof. 

Bank  v.  Litt,  5  0.  App.  439,  26  C.  C.  (X.S.)  145,  30  C.  D.  361. 

(c)  But  a  plea  of  failure  of  consideration  or  a  plea  of  pay- 
ment presents  a  case  very  different  from  the  defense  of  no 
consideration.  These  defenses  confess  and  avoid.  They  are 
affirmative  defenses;  and  the  burden  is  upon  the  defendant 
from  the  beginning  to  the  end. 

Ginn  v.  Dolan,   81   0.  S.   121,  9. 

(d)  In  an  action  on  a  promissory  note  where  the  petition 
alleges  that  there  is  a  specified  amount  due  thereon  from  the 
defendant  to  the  plaintiff,  an  answer  alleging  payment  of  the 
note  in  full  is  an  answer  setting  up  new  matter  in  confession 
and  avoidance.  And  if  payment  is  denied  by  the  plaintiff,  the 
flcfendant  has  the  burden  of  proof. 

FowRter  v.  Goddard,  25  0.  S.  276. 

Knauber  v.  W'liiuler,  6  A.  L.  R.  367,  5  0.  D.  R.  516. 


53.  PROOF  OF  PERFORMANCE. 

(a)  Where  a  plaintiff  seeks  to  recover  damages  for  breach 
of  contract,  the  burden  of  proof  is  on  him  to  show  either  sub< 
ptantial  performance  or  tender  of  performance  of  the  condi- 
tions on  his  part  to  be  performed.  In  pleading  the  perform- 
ance of  conditions  precedent  in  a  contract,  it  is  sufficient  to 


^53  METZLER'S   OHIO    TRIAL    EVIDENCE  60 

state  that  the  party  duly  performed  all  the  conditions  on  his 
part.  If  this  is  denied,  the  party  pleading  has  the  burden  of 
proof. 

Thomas  v.  Matthews,  94  0.  S.  32. 

See  Moody  v.  Insurance  Co.,  52  0.  S.   12,  17. 

Section   11339,  General  Code. 

(b)  The  condition  of  insurance  policies  as  to  arbitration 
or  appraisement  in  the  event  of  disagreement  is  a  condition 
precedent ;  and  to  entitle  the  insured  to  maintain  an  action  to 
recover  under  the  policy,  the  burden  lies  upon  him  to  show 
that  he  has  performed,  offered  to  perform,  or  has  a  legal 
excuse  for  non-performance. 

Graham  v.  Insurance  Co..  75  0.  S.  374. 

Fire  Association  v.   Appel,   76   0.  S.   1,  7. 

Insurance  Co.  v.  Titus,  82  0.   S.   IGl. 

Kandar  v.  Aetna  Co.,  10  C.  C.    (X.S.)    449,  20  C.  D.  260. 

(c)  The  conditions  precedent,  performance  of  which  the 
plaintiff  is  required  to  plead  in  an  action  on  such  a  policy, 
include  only  those  affirmative  acts  which  are  necessary  in 
order  to  perfect  his  right  of  action  on  the  policy,  such  as  giv- 
ing notice  and  making  proof  of  the  loss,  furnishing  the  cer- 
tificate of  the  magistrate  when  required  by  the  policy,  and,  it 
may  be,  other  acts  of  like  nature. 

Moody  V.  Insurance  Co.,  52  0.  S.  12. 

Armstrong  v.  Insurance  Co.,  22  C.  C.    (X.S.)    129,  4  0.  App.  46. 
See  Insurance  Co.  v.  Hillard,   19   C.   C.    (X.S.)    7S.   2   0.   App.  223,  25 
C.  D.  131. 

(d)  But  conditions  in  a  policy  which  provide  that  it  shall 
become  void,  or  inoperative,  or  the  insurer  relieved  wholly  or 
partially  from  liability  upon  the  happening  of  some  event,  or 
the  doing  or  omission  to  do  some  act,  are  matters  of  defense; 
and  to  be  available  they  must  be  pleaded,  and  their  breach 
alleged  and  proved. 

Moody  V.  Insurance  Co.,  52  0.  S.  12. 

Interstate  Co.  v.  Bird,  10  C.  D.  211,  18  C.  C.  488. 

Knights  V.  Everding,  11  CD.  419,  20  C.  C.  689. 

Hall  V.  Aid  Assn.,  6  C.  C.  137,  3  C.  D.  384. 

Mumaw  v.  Insurance  Co.,  97  O    S.  1. 

Insurance  Co.  v.  Zimmer,  97  O.  S.  14. 


61  THE    BURDEN    OF    PROOF  S 


06 


(e)  In  an  action  upon  a  policy  of  life  insurance  contain- 
ing a  proviso  that  it  should  be  null  and  void  in  case  the 
insured  should  under  any  circumstances  die  by  his  OM^n  hand, 
issue  was  joined  as  to  whether  his  death  was  within  the  pro- 
viso;  and  it  was  held  on  the  trial  that  the  burden  was  upon 
the  company  to  show  that  the  death  was  within  the  proviso. 

Schultz  V.  Tnstirance  Co.,  40  O.  ?.  217. 

(f)  This  principle  applies  to  other  contracts.  When  a 
common  carrier  claims  immunity  for  the  loss  of  goods  on  the 
ground  that  such  immunity  is  secured  by  a  special  agreement, 
the  burden  of  proof  is  on  the  carrier  to  show  that  the  loss 
occurred  Avithin  the  terms  of  the  agreement,  and  also  that  the 
loss  occurred  without  fault  on  his  part. 

Union  Express  v.  Graham,  2G  0.  ?.  505. 

U.  S.  Express  v.  Backman,  2S  0.   S.   144. 

Penn.  Co.  V.  Yoder,   15  C.  D.  32,  1  C.  C.   (X.S.)    233. 

See  also  Gaines  v.  Trans.  Co.,  28  0.  S.  418. 

Cf.  Walls  V.  Express  Co.,  19  N.  P.  (N.S.)    156,  28  0.  D.  50. 

(g")  And  the  burden  rests  upon  a  defendant  lessee  to  show 
that  it  was  prevented  from  mining  and  removing  the  minimum 
tonnage  by  a  cause  beyond  its  control,  Avithin  the  meaning  of 
the  saving  clause  in  the  lease,  in  order  to  relieve  itself  from 
liability  for  the  specified  minimum  royalty. 

Coal  Co.  V.   Coal  Co.,   86  0.  S.   140. 

(h)  However,  the  burden  of  proof  is  upon  the  plaintiff  to 
establi.sh  performance ;  and  the  burden  is  not  changed  by  the 
fact  that  the  answer,  in  addition  to  a  denial  of  performance 
by  the  plaintiff,  specifically  enumerates  several  particulars  in 
V  l:ieh  such  failure  to  perform  consists.  The  answer  contains 
uo  new  matter, 

Mehurin  v.  Stono,  37  0.  S.  49. 

(i)  "Where,  in  an  action  brought  by  the  obligee  in  a  bond, 
the  allegation  of  j)erformance  in  plaintiff's  petition  is  con- 
troverted by  the  answer  of  the  surety,  wlio  alleges  and  pleads 
specific  breaches  of  said  contract,  the  burden  is  on  the  plain- 
tiff to  establish  on  the  trial  by  a  preponderance  of  the  evi- 
dence the  facts  showing  such  performance.  It  is  error  for  the 
court  in  such  case  to  instruct  the  jury  that  the  burden  is  on 


§  54  METZLER'S    OHIO    TRIAL    EVIDENCE  62 

the  defendant,  the  surety,  to  show  and  prove  that  such  viola- 
tion and  non-performance  by  plaintiff,  was  without  his,  the 
surety's  consent. 

Brewing  Co.  v.  Schnltz,  68  0.  S.  407. 

54.  PROOF  OF  A  SINGLE  FACT. 

(a)  The  burden  of  proof  of  the  case  is  to  be  distinguished 

from  the  burden  of  proving  some  single  fact.     The  burden  of 

proving  any  particular  fact  lies  on   that  person   who   wishes 

the  court  to  believe  in  its  existence,  unless  it  is  provided  by 

law  that  the  burden  of  proving  that  fact  shall  lie  on  some 

particular  person.     (See  Railway  v.  Eoos,  6  C.  D.  33,  9  C.  C. 

201,  5.)     It  is  otherwise  provided  by  law  in  the  rules  relating 

to  presumptions  and  legal  prima  facie  cases.     For  example,  if 

a  party  charged  with  rape  relies  on  incapacity  as  a  defense, 

under  this  rule   he   must  prove   it,   notwithstanding   the   real 

burden  of  proof  is  on  the  state.    But  if  it  appears  on  the  trial 

that  the  accused  is  under  fourteen  years  of  age,  the  burden  is 

on  the  state  to  prove  capacity  to  commit  the  crime,  as  there 

is  a  presumption  of  law  to  the  contrary, 

Hiltabiddle  v.  State,  35  0.  S.  52. 

See  Railway  v.  Ward,  2  C.   C.    (X.S.)    256,   15   C.  D.   399. 

(b)  If  a  party  Avishes  the  court  or  jury  not  to  accept  as 
true  an  inference  naturally  arising  from  evidence  adduced, 
the  burden  is  upon  him  to  make  an  explanation,  modification 
or  denial  by  cross-examination  or  otherwise.  And  where  a 
reasonable  inference  is  drawn  by  the  trial-court  and  it  is  not 
modified  or  rebutted  by  the  adverse  party,  and  he  remains 
silent  when  confronted  by  such  evidence,  a  reviewing  court 
should  sustain  the  trial-court. 

See  Hinz  v.  State,  15  C.  C.   (X.S.)   88,  23  C.  D.  296. 

(c)  When  a  witness  testifies  that  he  mailed  a  letter,  in 
the  absence  of  any  inquiry  as  to  the  mode  in  which  he  mailed 
it,  the  presumption  is  that  he  mailed  it  in  accordance  with  the 
regulations  of  the  post-ot^ce  department. 

Grain  Co.  v.  DeFranco,  16  C.  C.    (N.S.)    182. 

(d)  Where  the  evidence  shows  that  certain  persons  are 
brothers  and  sisters  of  another,   it  will  be  presumed,   in  the 


63  THE    BURDEN    OF    PROOF  §  55 

absence  of  evidence  to  the  contrary,  that  they  were  brothers 
and  sisters  of  the  full-blood  and  legitimate. 
Ossman  v.  Sclimitz.  4  C.  C.   (X.S.)   502,  14  C.  D.  700. 

(e)  AYhere  the  defendant  admitted  that  he  owned  the 
team  and  wagon,  from  tlie  negligent  management  of  wliieh 
the  plaintiff  claimed  to  have  suffered  injury,  it  was  held  error 
1o  take  the  case  from  the  jury  on  the  ground  that  no  evidence 
of  agency  had  been  introduced. 

Walton  V.  Ensign,  6  C.  C.   (X.S.)    300.  17  C.  D.  505. 
Cf.  Coal  Co.  V.  Rivoiix,  88  O.  S.   18. 

55.  OPEN  AND  CLOSE— GENERAL  PRINCIPLES. 

(a)  Section  11447  of  the  General  Code  (R.  S.  Sec.  5190), 
which  prescribes  the  order  of  conducting  trials,  provides  that 
the  party  whp  would  be  defeated  if  no  evidence  were  offered 
on  either  side,  first  must  produce  his  evidence ;  and  the  ad- 
verse party  must  then  jiroduce  his  evidence.  Since  the  party 
Avho  affirms  would  be  defeated  if  no  evidence  were  offered  on 
either  side,  it  is  necessary  that  he  open  and  close — open  by 
making  out  a  case  for  the  jury,  and  close  with  a  preponder- 
ance of  the  evidence  in  his  favor. 

(b)  As  a  general  rule,  the  party  holding  the  burden  of 
proof  should  open  and  close  the  evidence  and  the  argument. 
In  determining  which  party  should  begin,  it  is  not  so  much 
the  form  of  the  issue  that  is  to  be  considered  as  the  substance 
and  effect  of  it.  The  judge  should  consider  what  is  the  sub- 
stantial fact  to  be  made  out,  and  on  whom  it  lies  to  make  it 
out. 

ivrontgomery  v.  Swindler,  32  0.  S.  224. 
Xeff  V.   Cincinnati,  32   0.  S.  215,  9. 

(c)  Where  there  are  several  issues,  if  the  plaintiff  holds 
the  affirmative  of  any  one,  or  if  any  evidence  material  to  his 
case  is  required  of  him,  he  should  begin.  But  when  l)y  the 
pleadings,  it  is  apparent  that  no  evidence  is  required  from  the 
[)laintiff,  the  defendant  should  begin. 

:\rontgomcry  v.  Swindler,  32  0.  S.  224. 

Xefr  V.   Cinfintiati.   .32   O.   S.   215,   9. 

Standart  v.  Shcltoii,  1  W.  L.  M.  40.5,  2  0.  D.  R.  116. 


§56  METZLER'S    OHIO    TRIAL    EVIDENCE  64 

(d)  In  special  proceedinfrs  for  which  there  is  no  special 
statutory  provision,  the  subject  must  necessarily  be  governed 
by  the  rules  of  the  common  law,  or  in  analogy  to  the  corres- 
ponding provision  of  the  code.  In  either  case,  the  result  will 
be  the  same ;  for  there  is  no  substantial  difference  in  this  re- 
spect between  the  practice  prescribed  by  the  code  and  that 
of  the  common  law. 

Neff  V.  Cincinnati,  32  0.  S.  215,  0. 
Insurance  Co.  v.   Paver,   16  Oh.   324,  30. 

56.  OPEN  AND  CLOSE— ILLUSTRATIONS. 

(a)  In  an  action  to  recover  damages  for  assault  and  bat- 
tery, where  an  issue  was  joined  on  an  answer  justifying  the 
alleged  trespass,  it  was  held  that  the  right  to  begin  and  close 
was  in  the  plaintiff.  In  actions  for  unliquidated  damages, 
with  pleas  in  justification  whicli  are  put  in  issue  by  the  reply, 
both  reason  and  weight  of  authority  is  that  the  plaintiff 
should  open  and  close.     This  rule  applies  in  a  libel  case, 

Dillo  V.  Lovell.  37  0.  S.  415,  7. 

Dragoo  v.  Whisner.  31   0.  S.   192. 

Gazette  Co.  v.  Bishop,  7  Bull.  60,  6  0.  D.  E.  1113. 

(b)  In  an  action  for  the  recovery  of  real  estate,  the  de- 
fendant having  set  up  the  statute  of  limitation  in  bar  of  a 
claim  for  rents  and  profits,  claimed  the  right  to  open  and 
close  the  argument,  which  was  refused.  The  plaintiff  had 
opened  the  testimony,  without  objection,  and  had  given  evi- 
dence to  show  the  value  of  the  rents  and  profits,  a  matter  in 
issue;  and  the  court  properly  allowed  him  to  open  and  close 
the  argument. 

Harrison  v.  Castner,  11  0.  S.  330,  47. 

(c)  But  where  an  answer  admits  the  averments  of  the 
petition  and  sets  up  new  matter  as  a  defense,  which  consti- 
tutes the  only  issue,  the  defendant  is  entitled  to  open  and 
close.  So  where  the  defendant  in  his  answer  to  the  petition 
on  a  note  pleads  the  defense  of  payment,  and  this  is  the  only 
issue,  he  is  entitled  to  open  and  close.  Hence,  if  the  plaintiff 
is  allowed  to  open,  and  the  defendant  then  gives  evidence 
tending  to   prove   payment,   and   the   plaintiff   rebuts   this  by 


65  THE     BURDEN     OF     PROOF  §  57 

proving  alleged  admissions  by  the  defendant,  a  refusal  of 
defendant's  evidence  to  rebnt  the  evidence  of  admissions  is 
prejudicial  error. 

Organ  Co.  v.  Bigrrs.  22  C.  C.  3fl2.  12  C.  D.  497. 
Fewster  v.  Goddard,  25  0.  S.  276. 
Stone  Co.  v.  Whigham,  23  C.  C.   (N.S.)   529. 
Gerlaugh  v.  Riley,  2  X.  P.    (X.S.)    107.  U  0.  D.  557. 

57.  OPEN  AND  CLOSE— ERROR  IN  RULING. 

(a)  In  determining  the  right  to  open  and  close  upon  a 
complicated  state  of  pleading,  a  liberal  discretion  is  allowed 
to  the  court  trying  the  cause ;  and  this  discretion  will  not  be 
revieAved  except  upon  a  ])]ain  case  of  error;  and  in  a  case 
tried  to  the  court,  it  is  not  error  to  give  the  open  and  close  of 
the  argument  to  the  side  not  having  the  burden  of  proof.  The 
court  may  hear  that  side  first  as  to  Avhich  there  is  a  doubt. 

Montgomery  v.  Swindler.  32  0.  S.  224. 

Rolling  Mill  v.  Packard.  1  C.  C.  76,  1  C.  D.  46. 

(b)  The  general  rules  must  be  so  often  applied  or  re- 
laxed according  to  circumstances  apparent  only  to  the  trial- 
couit.  that  a  strict  uniformity  would  in  some  instances  prove 
injurious  to  the  interests  of  justice.  Therefore,  a  discretion 
is  confided  to  the  trial-court,  which  should  not  be  exercised 
with  arbitrary  strictness  or  indulgence. 

Tlunyan  v.  Price,  15  0.  S.  1,  5. 

(c)  A  judgment  will  not  be  reversed  for  error  in  deciding 
the  right  to  open  and  close,  unless  the  error  is  prejudicial  and 
the  record  shows  affirmatively  that  there  were  no  s{)ecial  rea- 
sons for  directing  the  order  of  trial.  The  presumption  is  in 
favor  of  the  correctness  of  the  ruling  of  the  court  belov.\ 

Dille  V.  Lovell,  37  0.  S.  415. 

Minzey  v.  :Mar(y.  6  C.  C.    (X.S.)    593.   15  C.  D.  593. 

Loudenback  v.  Lowry,  4  C.  C.  65,  2  C.  D.  422. 

(d)  Opening  a  case  to  let  in  further  evidence  for  plaintif 
after  he  has  rested,  and  while  a  motion  to  direct  a  verdict  for- 
the  defendant  is  pending,  is  a  |)roper  exercise  of  the  court's 
discretion.     And  it  is  not  an  abu.se  of  discretion  to  allow  the 

.MKIZI. Kit's     IIMAI      i;V. 3 


§  58  METZLER'S    OHIO    TRIAL    EVIDENCE  66 

plaintiff  to  be  recalled  for  further  cross-examination  after  his 

evidence  is  all  before  the  jury  and  he  has  rested  his  case. 

Hackman  v.  Cedar,  5  C.  D.  293,  13  C.  C.  61S. 
Brandon  v.  Railway,  8  C.  D.  642,  17  C.  C.  705. 

58.  REBUTTING    EVIDENCE. 

(a)  When  all  the  evidence  in  chief  has  been  adduced,  the 

parties  will  then  be  confined  to  rebutting  evidence,  unless  the 

court  for  good  reasons  in  furtherance  of  justice  permits  them 

to  offer  evidence  in  their  original  cases.     But   the  judgment 

Avill  not  be  reversed  for  permitting  evidence  in  the   original 

case  to  be  offered  under  such  circumstances,  unless  it  appears 

affirmatively  that  good  reasons  in  furtherance  of  justice  were 

not  shown. 

Section   11447,  General  Code. 

Morris  v.   Faiirot,  21   0.   S.   155. 

Sullivan  v.  Fogarty,  3  X.  P.  79,  6  0.  D.   130. 

(b)  In  the  trial  of  a  cause,  the  allowing  of  evidence  in 
chief  to  be  introduced  out  of  its  order  rests  in  the  sound  dis- 
cretion of  the  court.  A  case  will  not  be  reversed  for  such 
departure,  unless  it  prevented  the  party  from  having  a  fair 
trial.  And  it  is  not  the  rule  that  any  departure  from  the 
regular  order  is  to  be  regarded  as  erroneous  unless  the  record 
shows  sufficient  reason  for  the  departure;  for  the  presumption 
is  in  favor  of  the  correctness  of  the  ruling  of  the  court  below. 

Webb  V.  State.  29  0.  S.  351.  6. 

Schaal  v.  Ileck,  8  C.  D.  .590.  17  C.  C.  3S. 

(c)  As  a  general  rule,  the  party  upon  whom  the  affirma- 
tive of  an  issue  devolves  is  bound  to  give  all  his  evidence  in 
support  of  the  issue  in  the  first  instance ;  and  he  can  give  only 
such  evidence  in  reply  as  tends  to  answer  the  new  matter 
introduced  by  his  adversary.  Any  relaxation  of  this  rule  is 
but  an  appeal  to  the  sound  discretion  of  the  court  in  which 
the  issue  is  tried.  However,  a  court  would  not  ordinarily  be 
justified  in  closing  a  case,  until  all  the  evidence  offered  in 
good  faith,  and  necessary  to  the  ends  of  justice,  had  been 
lieard. 

Graham   v.  Davi?.   4   0.   S.   362,   81. 

Mehurin  v.   Stone.  37  0.  S.  49.  59. 

Railway  v.  Wales,   11   C.  C.  371.  5  C.  D.   168. 

Ptrauss  V.  Dashnev,   12  Bull.   182,  9  0.  D.  R.  329. 


67  THE    BURDEN     OF     PROOF  §  58 

(d)  The  trial-court  should  not  reopen  a  case  for  such  evi- 
dence when  a  party,  without  fault  on  his  part,  by  reason  of 
the  discharge  of  Avitnesses.  or  otherwise,  would  be  cut  off  from 
an  answer  to  the  new  testimony,  which  he  might  have  made  if 
it  had  been  regularly  given.  Yet,  if  the  record  fails  to  show 
that  the  party  was  deprived  of  the  right  to  answer,  such 
action  is  not  in  legal  view  prejudicial. 

Donald  v.  State.  11  CD.  483,  21  C.  C.  124. 

(e)  A  reasonable  time  to  recall  witnesses  and  make  answer 

to  the  new  evidence  should  be  allowed.     It  is  not  an  abuse  of 

discretion  to  permit  the  admission  of  evidence  out  of  order, 

when  the  court  at  the  time  states  to  opposing  counsel  that  he 

may  offer  evidence  to  meet  it. 

Taylor  v.  State,  12  C.  C.   (N.S.)    4SG,  21  C.  D.  602. 
Cincinnati  v.  McLaughlin,  12  C.  C.   (N.S.)    220,  21  C.  D.  503. 

(f)  When  both  sides  have  rested  and  one  of  the  parties 
has  left  with  the  assurance  that  no  more  evidence  would  be 
introduced  by  the  other  side,  it  is  not  an  abuse  of  discretion 
to  refuse  to  receive  additional  and  material  evidence  there- 
after offered  by  the  party  giving  such  assurance. 

Supreme  Conclave  v.  Fife,  16  C.  C.   (N.S.)   205,  27  C.  D.  638. 

(g)  And  where  evidence,  if  admissible  at  all,  is  evidence 
in  chief,  and  the  party  omits  to  offer  it  then,  and  without 
explanation  of  the  omission  offers  it  in  rebuttal,  and  it  is  then 
rejected  by  the  trial-court,  the  supreme  court  will  not  pass 
upon  its  competency. 

Hills  V.  Ludwig,  46  0.  S.  373. 

(h)  Further  evidence  may  be  admitted  in  the  discretion 
of  the  court  in  the  interest  of  justice  after  the  cause  has  been 
finally  submitted,  and  the  jury  are  deliberating  on  their  ver- 
dict. Tn  such  a  case,  it  is  error  to  refuse  to  hear  new  evidence 
discovered  by  chance  which  is  not  cumulative,  and  which  is 
proffered  as  a  new  defense. 

Koevenv  v.  Ottman,  26  Bull.  65,  11   O.  D.  T5.  301. 

Miller  V.  McLean,  11   C.  C.    (N.S.)    424,  21   C.   D.   64. 

(i)  And  even  in  criminal  cases,  it  is  within  the  discretion 
of  the  court  to  grant  permission  to  the  prosecution  to  intro- 


§59  METZLER'S    OHIO    TRIAL    EVIDENCE  68 

duce  additional  evidence  in  chief  after  the  close  of  the  defense, 
and  after  requests  for  instructions  to  the  jury  have  been 
passed  on. 

Hughes  V.  State,  9  C.  C.   (X.S.)    369,  19  C.  D.  237. 

59.  PROPER  REBUTTAL. 

(a)  Where  a  plaintiff  holding  an  unfiled  chattel  mortgage 
brings  an  action  in  replevin  against  a  defendant  holding  a 
later,  but  duly  filed,  chattel  mortgage,  and  the  answer  is 
simply  a  denial,  the  plaintiff  need  not  show  in  chief  that  the 
latter  mortgage  is  not  superior  to  his,  but  may  prove  this  in 
rebuttal. 

Smith  V.  Simper,  S  C.  D.  308,  15  C.  C.  375. 

(b)  In  an  action  on  an  insurance  policy,  where  the  answer 
sets  up  an  appraisement  as  fixing  the  amount  of  the  loss,  and 
the  reply  attacks  the  appraisement,  the  court  may  allow  the 
evidence  to  follow  the  order  of  the  issues;  but  it  is  not  error 
for  the  court  to  require  the  plaintiff  to  put  in  all  his  evidence 
on  this  issue  with  his  other  evidence. 

Insurance  Co.  v.  Romeis,  S  C.  D.  633,  15  C.  C.  697. 

(c)  Evidence  of  facts  which  are  first  introduced  in  a  sase 

by  way  of  rebutting  evidence,  may  be  rebutted  by  other  proper 

evidence.     So,  if  new  facts  are  brought  out  in  the  plaintiff's 

rebutting  evidence,  the  defendant  has  the  right  to  surrebut. 

Morris  v.  Faurot,  21  0.  S.  155. 

Benefit  Assn.,  v.   Harding,   7   C.   C.   438,  4  C.  D.   G6S. 

See  also  Fewster  v.  Goddard,  25  0.  S.  276. 

(d)  In  a  triangular  case  which  results  from  the  raising  of 
an  issue  between  defendants,  a  defendant  oft'ering  evidence  in 
reply  to  the  defense  of  a  co-defendant,  should  be  ])ermitted  to 
adduce  his  evidence,  because  this  evidence  woukl  be  a  part  of 
the  case  in  rebuttal  of  the  regular  defense  and  not  a  part  of 
the  plaintiff's  case  in  chief. 

Wylie  V.  King,   18  C.  C.    (X.S.)    304. 


CHAPTER  V. 
THE  SHIFTING  BURDEN. 

60.  The  burden  of  proof  never  shifts. 

61.  The  duty  of  rebutting  shifts. 

62.  Cases  for  the  court. 

63.  The  charge. 

64.  Error  in  the  charge. 

65.  Illustrations  of  shifting. 

66.  The  effect  of  negative  allegations. 

67.  Clear  evidence — Geneial    principles. 

68.  Clear  evidence  to  vary  writings. 

69.  Clear  evidence  to  establish   a  trust. 

70.  Clear  evidence  to  reform   an  instrument. 

71.  Clear  evidence  to  vary   commercial    paper. 

72.  Clear  evidence  to  affect  official  action. 

73.  Clear  evidence  to  establish  lost   instruments. 

74.  Clear  evidence  in  miscellaneous  cases. 

75.  Clear  evidence  in  transactions   not   favored. 

eO.  THE  BURDEN  OF  PROOF  NEVER  SHIFTS. 

(a)  The  burden  that  rests  on  a  party  to  establish  the 
material  averments  of  his  cause  of  action  by  a  preponderance 
of  all  the  evidence,  never  shifts.  The  party  that  maintains  the 
affirmative  of  an  issne  carries  the  burden  of  proof  throujzh  the 
Avhole  case,  although  he  may  be  aided  by  such  a  rebuttable 
])resumption  of  law,  or  such  facts,  as  would  prima  facie  sup- 
port his  contention. 

Ginn  v.  Dolan,  81  0.   S.   121,  7. 

Insurance  Co.  v.  LaBoiteaux,  4  A.  L.  E.  1,  5  0.  T).  P..  242. 

Van  Ingen  v.  Peterson,  12  C.  C.    (N.S.)    253,  21   C.  D.  rm. 

(b)  In  an  action  brought  on  a  contract  which  was  daimcd 
to  be  absolute,  but  which  was  denied  by  the  answer,  the  evi- 
dence introduced  by  the  defendant  tended  to  show  a  condi- 
tional contract;  and  it  was  hold  that  the  burden  of  proof  did 
not    shift;    and   that    the    court    erred    in    charging    the    jury 

69 


§  60  METZLER'S    OHIO    TRIAL    EVIDENCE  70 

that  the  burden  of  proof  was  upon  the   defendant   to   prove 
that  the  contract  was  a  conditional  one. 
Leisy  v.  Zuellig,  7  C.  C.  423,  6  C.  D.  175. 

(c)  In  an  action  against  the  bailees  of  a  team  of  horses 
for  causing  the  death  of  one  of  the  horses  and  injuring  the 
other  by  negligently  driving  them,  the  burden  of  proof  is  on 
the  bailor  to  prove  negligence ;  and  it  is  not  shifted  by  show- 
ing that  the  horses  were  sound  when  delivered  to  the  bailees, 

McDonald  v.  Miser,  2  C.  C.    (N.S.)    313,  15  €.  D.  753. 

Cf.  Heckler  v.  Transfer  Co.,  17  X.  P.   (X.S.)   294,  25  0.  D.  171. 

(d)  Where,  in  a  suit  upon  a  promissory  note,  the  defense 
is  that  the  note  was  given  or  obtained  without  a  valuable  con- 
sideration, the  plaintiff  has  the  affirmative  of  the  issue ;  and 
the  burden  of  proof  rests  upon  him  at  every  stage  of  the  case 
to  show  a  consideration  for  the  note  by  a  preponderance  of 
the  evidence.     This  burden  never  shifts. 

Ginn  v.  Dohin,   SI   0.   S.   121.   7. 

(e)  Where  a  note  shows  on  its  face  that  it  is  barred  by 

the  statute,  and  a  payment  indorsed  thereon  is  relied  upon  by 

the  plaintiff  to  bring  it  within  the  exception,  the  plaintiff  has 

the  burden  of  proving  that  it  was,  in  fact,  made,  when  the 

defendant  denies  the  payment.     And  the  introduction  of  such 

note  in  evidence  does  not  shift  the  burden  of  proof. 

Keel  V.  Pvudisell,  13  C.  C.  190,  7  C.  D.  404. 
Schmith  v.  Conlton,  22  C.  C.   (X.S.)    174. 

(f)  In  an  action  for  damages  for  a  personal  injury,  the 
burden  of  proving  by  a  preponderance  of  evidence  the  partic- 
ular negligence  alleged  is  at  all  times  upon  the  plaintiff;  and 
while  proof  of  facts  sufficient  to  create  a  prima  facie  presump- 
tion of  negligence  against  the  defendant,  casts  upon  him  the 
burden  of  producing  evidence  of  equal  M^eight,  in  order  to 
control  or  destroy  such  presumption,  yet  proof  of  such  facts 
does  not  impose  upon  the  defendant  the  burden  of  establishing 
affirmatively  by  a  preponderance  of  evidence  that  he  was  not 
negligent. 

Klunk  V.  Pvailway,  74  0.  S.   125. 

See  also  Ilutson  v.  Hartley,   72   O.   S.  262. 

State  V.  Austin,  71   0.   S.   317 


71  THE    SHIFTING    BURDEN  §61 

61.  THE  DUTY  OF  REBUTTING  SHIFTS. 

(a)  The  term  "burden  of  proof"  is  used  in  different  senses. 
Sometimes  it  is  used  to  signify  the  burden  of  making  or  meet- 
ing a  prima  facie  ease,  and  sometimes  the  burden  of  produc- 
ing a  preponderance  of  evidence.  During  the  progress  of  a 
trial  it  often  happens  that  a  party  gives  evidence  tending  to 
establish  his  allegation,  sufficient  it  may  be  to  establish  it 
prima  facie ;  and  it  is  sometimes  said  that  the  burden  of  proof 
is  then  shifted.  All  that  is  meant  by  this  is  that  there  is  a 
necessity  of  evidence  to  answer  the  prima  facie  case,  or  it 
will  prevail ;  but  the  burden  of  maintaining  the  affirmative  of 
the  issue  involved  in  the  action  is  upon  the  party  alleging  the 
fact  which  constitutes  the  issue,  and  this  burden  remains 
throughout  the  trial.  In  other  words,  the  duty  of  introducing 
evidence  to  meet  a  prima  facie  case  shifts  back  and  forth ; 
but  the  burden  of  proof  at  all  times  rests  upon  him  who 
affirms. 

KluTik  V.  Railway,  74  0.  S.  125,   1.34  and  136. 

See  Judge  v.  Benefit  Assn..  20  C.  T).  133,  10  C.  C.    (X.R.)    473,  S3. 

McDonald  v.  Miser,  1.5  C.  D.  7.53,  2  C.  C.   (X.S.)    313,  S. 

(b)  This  use  of  the  term  "burden  of  proof"  in  different 
senses  has  been  the  cause  of  much  confusion.  The  term  should 
be  used  exclusively  to  signify  the  burden  on  the  party  holding 
the  affirmative  to  make  proof  by  a  preponderance  of  the  evi- 
dence ;  and  no  part  of  the  term  should  be  used  when  speaking 
of  the  duty  or  necessity  of  adducing  evidence  to  rebut  a  prima 
facie  case.  It  would  be  much  better  to  adopt  some  terra  that 
would  mark  the  distinction,  such,  for  instance,  as  the  duty  or 
necessity  of  rebutting,  or  some  similar  short  expression.  Ac- 
cordingly, it  would  add  to  clearness,  if  the  rule  quoted  in 
Railway  v.  Roos  were  stated  as  follows :  The  burden  of  proof 
never  shifts;  but  the  duty  of  adducing  evidence  is  shifted  by 
presumptions  of  law,  by  presumptions  of  fact  of  the  stronger 
kind,  and  by  evidence  strong  enough  to  establish  a  prima 
facie  case. 

See  Railway  v.  Roos,  9  C.   C  201,  :5;    fi  C.  T)    .33.  5. 

(c)  The  party  holding  the  burden  of  proof  has  also  the 
duty  of  beginning  tlie  evidence.     This  party  tries  to  produce 


§  62  METZLER'S    OHIO    TRIAL    EVIDENCE  72 

affirmative  conviction  by  establishing  a  prima  facie  case.  The 
adverse  party  tries  to  prevent  this  either  by  reducing  the  pro- 
bative force  of  such  prima  facie  case  or  by  establishing  one 
of  his  own.  If  a  prima  facie  case  is  made  by  the  first  party, 
the  burden  of  proof  remains  Avith  him ;  but  the  duty  of  adduc- 
ing evidence  is  obviously  shifted  to  the  adverse  party.  This 
is  the  duty  of  rebutting  a  prima  facie  case.  Now,  if  the 
adverse  party  in  his  turn  destroys  such  prima  facie  case  by 
making  one  on  his  side,  then,  of  course,  this  duty  of  adducing 
rebutting  evidence  is  shifted  back  to  the  first  party. 
See  ]\rcDonald  v.  Miser,  15  C.  D.  753,  2  C.  C.   (X.S.)   313,  8. 

(d)  However,  when  all  the  evidence  is  before  the  jury, 
the  court  in  its  charge  is  not  required,  upon  this  or  that  as- 
sumption and  in  respect  to  this  or  that  item  of  proof,  to 
instruct  the  jury  how  this  duty  or  burden  may  have  been 
changed  from  one  side  to  the  other.  There  might  be  no  end 
to  such  as;sumptions :  and  confusion  rather  than  a  more  clear 
apprehension  of  the  just  weight  of  all  the  evidence  would  be 
created  in  the  minds  of  the  jury. 

Mears  v.  Mears,  15  0.  S.  90,  100. 

62.  CASES  FOR  THE  COURT. 

(a)  The  duty  of  adducing  rebutting  evidence  is  of  con- 
siderable importance  in  civil  jury  cases.  It  is  a  well-known 
fact  that  if  the  party  holding  the  affirmative  fails  to  adduce 
a  scintilla  of  evidence  upon  every  material  allegation,  the 
court  may  dispose  of  the  case  as  matter  of  law ;  but  when  he 
adduces  the  required  amount  of  evidence,  then  the  case  is  one 
for  the  jury.  And  this  case  continues  to  be  one  for  the  jury 
until  the  other  party  makes  a  prima  facie  case  that  is  not  met 
by  some  evidence  tending  to  rebut  it.  And  every  prima 
facie  case,  whether  made  by  the  mass  of  evidence  or  by  a 
presumption,  that  is  not  met  by  some  evidence  tending  to 
rebut  it,  makes  a  case  for  the  judge. 

The  failure  of  a  party  to  answer  a  prima  facie  case  is  an 
admission,  implied  from  silence;  it  is  therefore  incumbent 
upon  such  party,  if  he  desires  to  refute,  change,  or  modify  the 
implied  admission,  to  present  evidence  which  Avill  have  that 
effect.     If  he  fails  to  adduce  some  such  evidence,  the  judge 


73  THE    SHIFTING    CURDEN  §  63 

may,  as  matter  of  law,  decide  in  favor  of  the  adverse  party. 
It  seems,  however,  that  a  clear  case  must  be  made  in  favor  of 
the  party  holding  the  affirmative,  to  authorize  the  judge  to 
direct  a  verdict  in  his  favor.  (See  cases  in  chapter  on  "Court 
and  Jury.'"! 

(b)  In  civil  cases,  when  a  presumption  arises  affecting  the 

whole  issue,  it  is,  in  the  absence  of  rebutiing  evidence,  so  far 

controlling  that  the  court  may  dismiss  the  petition  or  direct 

a  verdict.     And  when  a  prima  facie  case  in  favor  of  a  i)arty 

is  made  out,  he  may  rest  his  case ;  and  if  no  evidence  is  offered 

to  the  contrary,  he  is  entitled  to  a  directed  verdict. 

Wright  V.  Pliill,  S3  0.  S.  385,  07. 

Ecde  V.  Werner,   4   C.   C.    (X.S.)    15S,   16   C.   D.   206. 

(c)  In  an  action  to  recover  damages  for  personal  injury, 
if  the  proof  of  the  cause  of  the  injury  raises  a  presumption  of 
negligence  (res  ipsa  loquitur),  and  there  is  not  a  scintilla  of 
evidence  to  overcome  that  presumption,  it  is  the  duty  of  the 
court  to  direct  a  verdict  for  the  plaintiff. 

ITalterman    v.    Hansard,    4    0.    App.    268,   22    C.    C.    (X.S.)     443. 

Sec  also   Railroad   v.   Mowery,   36   0.   S.   418. 

Traction  Co.  v.  Holzenkamp,  74  0.  S.  379. 

Light  &  Power  Co.  v.   Bell,  5  C,  C.    (N.S.)    321,  16  C.  D.  691. 

(d)  And  where  the  testimony  of  the  plaintiff  raises  a  clear 

presumption    of    negligence    on    his    part    which    contributed 

directly  to  his  injury,  and  no  testimony  or  tangible  evidence 

is  offered  by  him  tending  to  rebut  that  presumption,  it  is  the 

duty  of  the  trial  court   to  direct  a  verdict  on  motion  of  the 

defendant  at  the  conclusion  of  plaintiff's  evidence. 

Railroad  Co.  v.  :McClellan,  69  0.  S.  142. 

Railway  v.  Cornwall,  14  C.  C.    (N.S.)   209,  24  C.  D.  124. 

63.  THE  CHARGE. 

(a)  Since  it  is  for  the  jury  to  decide  whether  a  prima 
facie  case  has  been  destroyed  by  the  evidence  introduced  to 
rebut  it  (Newnam  v.  Cincinnati,  18  Oh.  323,  334),  there  is 
need  of  considering  the  preponderance  rule  especially  with 
reference  to  the  charge.  The  court  must  make  it  plain  to  the 
jury  that  the  party  holding  the  affirmative  is  the  only  party 


§  64  METZLER'S   OHIO   TRIAL    EVIDENCE  74 

■who   is  required  to  produce   a   preponderance  of  evidence   to 

secure  the  verdict ;  and  that  his  opponent  need  do  no  more 

than    counter-balance    the    presumption    or    prima    facie    case 

against  him. 

Giiin  V.   Dolaii,  SI   0.   S.    121,   127. 
Fagan  v.  WeWi,  10  C.  C.   (N.S.)   177,  180. 

(b)  So  when  a  prima  facie  case  is  made  against  the  party 
holding  the  burden  of  proof,  either  by  the  mass  of  evidence 
or  by  a  presumption,  he  must  overcome  such  prima  facie  case 
"by  a  preponderance  of  the  evidence.  But  when  either  kind 
of  prima  facie  case  is  made  by  the  party  holding  the  burden 
of  proof,  his  opponent  is  not  required  to  overcome  it  by  a 
preponderance  of  the  evidence.  It  is  necessary  for  the  oppo- 
nent to  adduce  evidence  only  of  equal  weight  in  order  to  de- 
stroy the  effect  of  the  prima  facie  case.  In  other  words, 
evidence  of  equal  weight  prevents  a  preponderance  on  the 
other  side. 

See  Klunk   v.   Railway,   74  0.  S.   125. 

Barnes  v.  Auto  Co.,  22  C.  D.  233,  13   C.  C.    (N.S.)    571,  5. 

Contra,  Railway  v.  Rocs,  6   C.  D.  33,  9   C.   C.   201. 

64.  ERROR  IN  THE  CHARGE. 

(a)  A  party  is  entitled  to  have  the  issues  of  fact  in  a 
case  determined  by  a  jury  properly  instructed  as  to  the  bur- 
den of  proof.  A  misdirection  of  the  jury  in  this  respect  is 
error  for  which  the  judgment  will  be  reversed  at  the  instance 
of  the  party  prejudiced  thereby.  The  error  generally  consists 
in  requiring  the  preponderance  of  the  party  not  having  the 
burden  of  proof. 

McNutt   V.   Kaufman,   2G    0.    S.    127. 

Leisv  V.  Zuellig,  7  C.  C.  423.  6  C.  T).   175. 

McDonald  v.  Miser,  15  C.  D.  753,  2  C.  C.    (X.S.)    313,  20. 

(b)  A  judgment  will  be  reversed  where  the  charge  im- 
properly places  the  burden  of  proof:  especially  "where  the 
evidence  is  close  and  conflicting,  and  not  so  clear  and  conclu- 
sive as  to  enable  the  reviewing  c»urt  to  say  that  prejudice  did 
not  result  therefrom. 

Judge  V.  Benefit  Assn..  10  C.  C.    (N.S.)    473,  20  C.  D.  133. 
Schnial^tig   V.   Taft,  20  O.  C.   A.   519. 


Vo 


THE    SHIFTING    BURDEN  §65 


(c)  "Where  the  whole  evidence  adduced  on  the  trial  is 
made  part  of  the  record  by  a  bill  of  exceptions,  the  court  in 
determining  whether  the  judgment  should  be  reversed  will 
examine  the  evidence  as  well  as  the  charge  with  a  view  to 
determine  whether  under  all  the  circumstances  substantial 
justice  has  been  done ;  and  if  it  has,  the  judgment  will  not  be 
reversed. 

Baird  v.  Telephone  Co.,  10  C.  C.   (XS.)    163,  20  C.  D.  107. 

Railway  Co.  v.  Hart,  6  C.  D.  731,  10  C.  C.  411. 

Minzey  v.  Marcy,  6  C.  C.    (N.S.)    593,  15  C.  D.  593. 

But  see  McNutt  v.  Kaufman,  26  0.  S.  127. 

65.  ILLUSTRATIONS  OF  SHIFTING. 

(a)  In  an  action  by  the  state  for  the  recovery  of  canal 
lands,  the  state  must  first  prove  by  competent  evidence  that 
the  lands  in  question  were  formerly  part  of  the  canal  system 
of  the  state;  and  then  the  burden  shifts  to  the  defendant  to 
show  that  he  has  in  some  lawful  manner  acquired  title  from 
the  state. 

State  V.  Cinti.  Tin,  etc.   Co.,  66  0.   S.   182. 

(b)  In  an  action  on  the  bond  of  a  justice  of  the  peace  for 
neglecting  to  issue  an  execution  as  required  by  law,  the 
amount  of  the  judgment  is  prima  facie  the  measure  of  dam- 
ages, and  the  burden  of  showing  facts  in  mitigation  of 
damages  rests  on  the  defendant. 

Carpenter    v.    Warner,    38   0.   S.   416. 

(c)  Where  a  landowner  and  those  from  whom  he  derived 
title  have  used  for  more  than  twenty-one  years  without  let  or 
hindrance  a  right-of-way  over  and  across  adjoining  lands  to 
a  public  highway,  and  such  use  has  been  limited  to  a  well- 
defined  course,  the  burden  of  shoAving  that  such  use  was  per- 
missive is  cast  upon  the  owner  of  the  servient  estate. 

TToltsherry  v.  Bounds,  0  C.  C.    (N.S.)    510,   19   C.  D.   257. 
See  also  Pavey  v.  Vance,  56  O.  S.  162. 

(d)  If  it  appears  on  the  trial  of  one  charged  with  rape 
that  he  is  a  boy  under  fourteen  years  of  age.  the  presumption 
is  that  he  is  incapable  of  committing  the  act :  and  the  burden 
is  on  the  state  to  prove  capacity  to  commit  it. 

Hiltabiddle    v.    State,   35   0.   S.   52. 


§  65  METZLER'S    OHIO    TRIAL    EVIDENCE  76 

(e)  In  an  action  against  a  telegraph  company  for  damages 
resulting  from  an  inaccuracy  in  the  transmission  of  a  mes- 
sage, when  the  inaccuracy  is  shown,  the  burden  is  upon  the 
company  to  show  that  it  was  not  due  to  its  fault. 

W.  U.  Telegraph  Co.  v.  Sullivan,  82  0.  S.  14. 
Telegraph   Co.   v.    Griswold,    37    0.    S.    301. 

(f)  When  in  an  action  for  damages,  the  plaintiff  admits  the 
receipt  of  a  sum  of  money,  and  acknowledges  liis  signature  to 
a  release  which  is  delivered  to  the  defendant,  the  defense  of 
release  has  been  prima  facie  established  in  favor  of  the  de- 
fendant;  and  the  burden  is  npon  the  plaintiff  to  prove  fraud 
in  the  execution  of  the  release.  In  other  Avords,  if  the  execu- 
tion and  delivery  of  a  release  are  admitted,  the  burden  of 
proving  it  void  is  upon  the  releasor. 

Perry  v.  O'Xeil  &  Co.,  78  0.  S.  200,  25. 

(g)  In  an  action  by  a  creditor  for  the  purpose  of  subject- 
ing property  in  the  hands  of  a  donee  to  the  payment  of  his 
claim,  when  it  has  been  made  to  appear  that  tlie  debt  was 
contracted  by  the  donor  prior  to  the  making  of  the  gift,  the 
burden  cf  showing  the  solvency  of  the  debtor  at  the  time  of 
making  the  gift  rests  upon  the  defendant. 

Oliver  V.  Moore,  23  0.  S.  473. 

Maclaren  v.  Stone,   9   C.   D.  794,   18   C.   C.   83!. 

(h)  A  transfer  of  property  made  by  a  debtor  upon  a 
secret  trust  is  prima  facie  fraudulent  as  against  creditors; 
and,  as  against  them,  the  burden  of  proof  is  on  the  party 
claiming  under  it  to  show  adequacy  of  consideration  and  good 
faith  in  the  transaction. 

Ferguson   v.  Gilbert,  16  0.  S.  8S. 

(i)  Poll-books  duly  certified  and  returned  are  prima  facie 
evidence  of  the  truth  of  their  f'ontents;  but  this  may  be  re- 
butted by  proof  that  they  are  fraudulent  and  fictitious  to 
such  an  extent  as  to  render  them  wholly  unreliable.  Where 
a  poll-book  is  thus  impeached,  the  burden  of  ntlierwise  prov- 
ing legal  votes  is  thrown  upon  the  party  claiming  them. 

Phelps  V.  Schroder,  26  0.  S.  549. 


77  THE    SHIFTING    BURDEN  ^;  G-J 

(j)      In  an  action  by  the  grantor  in  a  deed  to  reform  the 

instrument    npon    the   ground    that    the    grantee    fraudulently 

concealed    and    misstated    the    contents    of    tlie    deed    to    the 

grantor,  when  it  appears  that  relations  of  trust  and  confidence 

existed  betAveen  the  parties,   the  grantee  must  show  that  no 

undue  advantage  was  taken  of  the  grajitoi-  in   tlie  execution 

of  the   deed.      If  the   grantee   makes   this   proof,    the    grantor 

must  prove  fraud  by  clear  and  convincing  evidence. 

McAdams  v.  McAdams,  SO  0.  S.  2.?'?. 

See  Mechling  v.  Buettger,  20  X.  P.   (X.S.)   27S.  2S  O.  D.   ITS. 

(k)  When  incapacity  on  the  part  of  the  grantor  to  exe- 
cute a  deed  is  charged,  and  the  conveyance  is  itself  reasonable 
and  proper,  it  m.akes  a  prima  facie  case-,  and  the  burden  is  on 
the  one  assailing  the  transaction  to  show  incapacity  at  the 
time  the  deed  was  executed. 

Boyer  v.  Boyer,  14  C.  C.  (N.R.)  30.5,  23  C.  D.  279. 

(1)  A  promissory  note  is  prima  facie  a  promise  to  pay  and 
not  a  payment;  and  if  a  party  eontends  that  a  note  was  given 
in  payment,  the  burden  is  on  liini  to  prove  it.  And  where  a 
document  bears  on  its  face  sufficient  evidence  to  raise  a  pre- 
sumption that  it  has  been  paid  or  that  the  claim  is  barred  by 
the  statute  of  limitation,  the  presumption  must  be  rebutted  in 
order  to  sustain  a  claim  thereunder. 

Wright  V.  Hull,  83  0.  S.   3S5. 

Price  V.  Coblitz,  21  C.  C.  732.  12  C.  D.  34. 

Waller  Co.  v.  Gordon,  7  C.  C.    (N.S.)    303,  14  C.  D.  407. 

(m)     Every  holder  of  commercial  paper  is  deemed  prima 

facie  to  be  a  holder  in  due  course:  but  when  it  is  shown  that 

the  title  of  any  person   who    negotiated   the   instrument    was 

defective,  the  burden  is   om   the  holder  to   jirove   thnt   he.   or 

some  person  under  whom  he  claims,   acquired   the   title  as  a 

holder  in  due  course. 

Section   8164,  General  Code. 

Thompson  v.  Bnrk,  13  C.  C.    (N.S.)   515,  22  C.  D.   mi. 

Bank   V.  Wickhni    fi  C.  D.  790,  IS  C.  C.  fiS.->. 

Ragan  v.  Sherman.   !7  C.  C.    (N.S.)    523,  24  C.  1).  214. 

(n)  As  the  presumption  is  that  the  holder  of  negotiable 
pajier  is  the  owner  of  it,  so  when  payment  is  made  to  a  person 


^  66  METZLER'S    OHIO    TRIAL    EVIDENCC  78 

not  having  possession  of  the  securities  properly  indorsed,  the 

burden  of  showing  that  such  person  was  authorized  to  receive 

jiayment  for  the  creditor  rests  upon  the  party  who  makes  the 

claim  of  payment. 

Tloffmaster  v.   Black,   78  0.   S.   1. 

Jjiit  see  Insurance  Co.  v.  Jones.  ;;.5  0.  S.  3.51. 

(o)  In  an  action  against  a  common  carrier,  the  plaintiff 
first  proves  the  delivery  of  the  goods  to  the  carrier,  and  that 
they  were  not  received  by  the  plaintiff.  This  entitles  the 
plaintiff  to  recover.  The  carrier  must  then  prove  that  the 
loss  arose  from  one  of  the  exceptions  provided  for  by  the 
contract,  and  that  the  servants  of  the  carrier  w^ere  in  the  due 
exercise  of  care.  This  proof  made  out  prima  facie  would 
entitle  the  carrier  to  a  verdict.  The  plaintiff'  then  nuiy  prove 
any  fact  or  omission  of  duty  establishing  negligence.  If  this 
fact  be  a  specific  one,  upon  which  the  witnesses  of  the  carrier 
were  not  examined,  it  is  the  right  of  the  defendant  to  rclmt 
such  testimony. 

Dissenting  opinion  of  Judge  Swan  in  Graham  v.  Davis,  4  0.  S.  362,  382. 

66.  THE  EFFECT  OF  NEGATIVE  ALLEGATIONS. 

(a)  It  is  a  general  rule  that  a  party  must  prove  every 
disputed  material  fact  that  is  essential  to  his  own  case.  If  the 
assertion  of  a  negative  is  an  essential  part  of  his  case,  he  must 
prove  it.  So  where  the  ground  of  an  action  rests  upon  a  nega- 
tive allegation,  or  where  a  statute  contains  negative  matter 
which  enters  into  a  description  of  the  offense,  or  where  the 
negative  allegation  involves  a  charge  of  criminal  neglect  of 
duty,  whether  official  or  otherwise,  some  evidence  must  be 
given  to  sustain  the  negative  allegation, 

Cheadle  v.  State,  4  O.  S.  477,  478. 
Moody  V.  State,  17  0.  S.  110,  11. 

(b)  The  general  rule  is  subject  to  an  established  excep- 
tion w^here  the  subject-matter  of  the  negative  averment  lies 
peculiarly  within  the  knowledge  of  the  opponent,  can  be 
readily  and  easily  proved  by  him,  and  can  not,  without  great 
inconvenience,  be  proved  by  the  party  making  the  averment. 
The  rule  does  not  depend  upon  a  mere  balancing  of  difificul- 


79  THE    SHIFTING    BURDEN  §  Gu 

ties;  and  it  is  never  ajiplied  unless  the  evidence  is  practically 
beyond  the  reach  of  the  ])arty,  and  clearly  within  the  power 
of  his  opponent.  (This  exception  is  a  rule  providing  that  a 
prima  facie  case  may  be  made  without  proof  of  negative  alle- 
gations under  certain  conditions.)  The  adjudged  cases  have, 
for  the  most  part,  confined  this  exception  to  civil  or  criminal 
prosecutions  for  a  penalty  for  doing  an  act  which  the  statutes 
do  not  permit  to  be  done  by  any  persons  except  those  duly 
licensed  therefor,  and  have  applied  it  to  the  averment  alleging 
the  want  of  such  qualification.  The  exception  had  its  origin 
in  prosecutions  under  the  English  game  laws,  but  has  since 
been  extended  to  prosecutions  for  selling  liquor,  exercising 
trades  without  license,  and«like  cases. 

Cheadle  v.  St.^.te,  4  0.  S.  477,  478,  480. 
See  also  Moody   v.   State,    17  0.  S.   110. 

(c)  Upon  an  indictment  for  voting  at  an  election  without 

being   a  citizen  of  the   United  States,   it   is  sufficient   for   the 

prosecution   to   prove    that   the    defendant    is   a   foreigner   by 

birth,  and  that  he  deposited  a  vote,  without  showing  that  he 

voted  for  any  person  or  for  any  office.     If  he  had  become  a 

naturalized  citizen   or  the  vote  was  blank,  he  must  show   it; 

for  the  state  can  not  prove  a  negative. 

Patterson  v.  State,  2  W.  L.  M.  333,  2  0.  D.  R.  304. 
State  V.  McGinly,  2  W.  L.  :\r.  504.  2  0.  D.  R.  398. 

(d)  In  a  recent  criminal  case,  the  exception  is  stated  to 
the  effect  that  where  the  subject-matter  of  a  negative  aver- 
ment in  an  indictment  relates  to  the  defendant  jiersonally,  oi- 
lies  peculiarly  within  his  knowledge,  the  averment  will  be 
taken  as  true,  unless  disproved  by  him.  So  in  a  prosecution 
for  bigamy,  the  state  is  not  bound  to  prove  that  the  defend- 
ant and  his  first  wife  were  not  divorced,  as  the  evidence  is 
peculiarly  within  defendant's  knowledge,  and  not  within  the 
possession  of  the  state. 

State  V.  Sappienza,  84  0.  S.  63.  71. 

Hanley  v.  State,  12  C.  C.  584,  5  C.  B.  488.  9. 

Cf.   Evans  v.   Reynolds,   32   0.    S.    103,   5. 

(e)  In  a  proceeding  in  contempt  against  a  party  who  had 
refused  to  comply  with  a  money  decree  for  alimony,  whon   it 


§  G7  METZLER'S    OHIO    TRIAL    EVIDENCE  80 

was  shown  that  the  defendant  had  not  obej^ed  the  order  of 
court,  it  was  said  that  a  prima  facie  case  had  been  made  that 
he  was  in  contempt ;  that  the  burden  was  upon  him  to  show 
that  it  was  not  in  his  power  to  obey  the  order;  and  that  this 
was  not  an  unreasonable  requirement,  for  the  defendant's 
financial  condition  and  ability  to  pay  were  peculiarly  within 
his  own  knowledge,  and  could  not  be  known  with  the  same 
certainty  to  the  complainant. 
State  V.  Cook,  66  0.  S.  566,  70. 

(f)  On  an  indictment  for  procuring  an  abortion,  it  was 
held  that,  in  order  to  convict,  it  was  incumbent  on  the  state 
to  prove  that  the  act  was  not  necessary  to  preserve  the  life  of 
the  motlier,  but  not  to  prove  the  negative  allegation  as  to  the 
advice  of  physicians. 

Mondy  V.   Ptofp,   17   0.   S.   no. 

Bridge   v.    State,    20   C.   C.    (X.S.)    231. 

(g")  On  the  trial  of  an  information  for  selling  spirituous 
liquors  not  inspected,  the  state  is  bound  to  give  some  evidence 
in  support  of  the  negative  averment.  P>iit  in  a  prosecution 
for  violation  of  a  local-option  ];iw  mal'ing  tlie  sale  of  intoxi- 
cating liquors  unlawful,  it  is  not  necessary  that  the  complaint 
allege  that  the  sale  was  not  within  the  exceptions  mentioned 
in  the  statute;  nor  is  it  necessary  to  prove  it.  Such  matter  is 
defense  and  must  be  established  as  such. 

Cheadle  v.   State.  4  0.   S.   477. 

Carniaek  v.    State,    1.3   C.   C.    (X.S.)    362,  22  C.  D.   55. 

Otte  V.  State,   19  C.  I).  203,  9  C.  C.    (X.S.)    293,  306. 

67.  CLEAR  EVIDENCE— GENERAL  FRITxlCIPLES. 

(a)  In  its  practical  application,  a  presumption  may  be 
strong  or  very  weak  according  to  the  circumstances  of  the 
particular  case.  This  may  also  be  said  of  prima  facie  cases. 
So  that  the  amount  of  evidence  reciiiicd  to  iel)ut  a  presump- 
tion or  a  prima  facie  case  is  not  ai^^•a^'s  the  same.  In  fact, 
there  is  a  great  difference  in  them  in  tliis  respect.  The  pre- 
sumption of  ownership  of  a  note  arising  from  possession  is  not 
strong,  but  open  to  be  blown  away  by  the  slightest  breath  of 


81  THE    SHIFTING    BURDEN  §67 

suspicion ;  while  the  presumption  that  a  child  begotten  in 
lawful  wedlock  is  legitimate,  is  a  strong  presumption  requir- 
ing clear,  certain  and  conclusive  evidence  to  overcome  it. 

Larimore  v.  Wells,  20  0.  S.   13,  S. 
Osborn  v.  McClelland,  43  0.  S.  2S4,  30.5. 
Powell  V.  State,  84   0.  S.   165. 

(b)  The  strong  presumptions  and  prima  facie  cases  ac- 
count for  most  of  the  rules  requiring  clear  and  convincing 
proof.  The  presumption  involved  is  usually  the  one  in  favor 
of  official  action,  such  as  the  official  certificate  of  acknowl- 
edgment of  a  deed  or  other  instrument ;  or  it  may  be  the  pre- 
sumption raised,  or  rather  the  prima  facie  case  made,  by  a 
writing  apparently  regular.  The  same  degree  of  proof  is  also 
required  to  establish  some  transactions  not  favored  by  law ; 
the  reason,  no  doubt,  is  that  inasmuch  as  they  are  not  favored, 
there  is  a  kind  of  presumption  against  them.  In  all  such 
cases,  it  seems  that  the  presumption  is  so  great,  or  the  prima 
facie  case  so  strong,  that  clear  and  convincing  evidence  is 
required  to  meet  or  overcome  it.  If  this  theory  is  correct, 
this  rule  is  only  the  duty  of  rebutting  appli<!d  to  special  cases ; 
and  the  preponderance  rule  should  also  apply,  even  though 
the  party  affirming  must  adduce  strong  evidence  against  such 
a  case  in  order  to  make  his  case  preponderate. 

(c)  The  cases  annoilncing  and  applying  this  rule  of  proof, 

and  herein  cited,  will  undoubtedly  show  that  the  statement  in 

the  preceding  paragraph  is  correct.    As  additional  evidence  of 

its  correctness,  attention  is  called  to  three  cases  cited  below, 

Avhere  it  is  held  that  clear  and  convincing  evidence  was  not 

required.     Upon  examination  of  these  cases,  it  will  be  found 

tlint  there  are  no  presumptions  or  prima  facie  cases  of  any 

kind  to  be  met  or  overcome. 

Chase  v.  Bninflnpre.  5S  0.   S.  517,  2.5. 

Heller  v.  Ilawley,  8  C.  C.   (X.S.)   265,  18  C.  D.  678. 

Americus  v.  McDowell,  10  C.  C.    (N.S.)    573,  6. 

(d)  When  clear  and  convincing  evidence  is  required,  and 
it  clearly  appears  that  the  rule  has  been  disregarded,  a  re- 
viewing court  on  error  may  reverse  the  judgment;  but  a  (lou])t 
as  to  the  degree  of  clearness  will  not  authorize  a  reversal.    In 


K  (58  NIETZLER'S   OHIO    TRIAL    EVIDENCE  82 

these  cases,  the  supreme  court  will  review  the  evidence  for  the 
purpose  of  determining  whether  the  proof  was  sufficient, 
although  it  will  not  review  the  mere  weight  of  evidence. 

Ford  V.  Osborne,  45  0.  S.  1. 

Potter  V.   Potter,   27   O.    S.   84. 

Stewart  v.   Gordon.   00   0.   S.    170,   4. 

Cole  V.  McClnre,  88  0.  S.   1. 

Clayton  v.  Freet,  10  0.  S.  544. 

See  Gilmore  v.  Cochran,   16  C.  C.    (N.S.)    315. 


68.  CLEAR  EVIDENCE  TO  VARY  WRITINGS. 

(a)  It  is  well  settled  that  an  instrument  solemnly"  entered 
into  by  the  parties  makes  a  strong  prima  facie  case  for  the 
statements  contained  therein ;  and  the  party  who  would  im- 
peach such  an  instrument  must  produce  clear  and  convincing 
evidence.  Examples,  in  addition  to  those  here  given,  may  be 
found  in  the  chapters  on  "The  Parol  Evidence  Rule." 

(b)  The  presumption  of  truth  that  follows  a  written  re- 
lease, with  a  covenant  to  save  harmless  the  covenantee,  can 
be  overcome  only  by  clear  and  convincing  evidence.  And 
when  one  holds  property  as  trustee  for  another  and  claims 
that  such  other  person  has  released  his  equity  therein,  the 
evidence  of  such  release  must  be  clear  and  convincing.  The 
same  kind  of  evidence  is  required  to  sjiow  a  waiver  of  a  con- 
dition in  a  written  contract. 

Edwards  lUg.  Co.  v.  Perry.  4  0.  A  pp.  .^00.  22  C.  C.  (X.S.)  422.  27 
C.  D.   570. 

Cf.  Jones  V.  Pickle,  7  0.  App.  33,  27  O.  C.  A.  413,  20  C.  D.  364. 

Lancken  v.  Piatt,  20  C.  C.    (X.S.I    0. 

Grain   Co.  v.   Fronizer.  25   C.   C.    (X.S.)    151. 

(c)  A  wife  claiming  that  her  signature  to  a  deed  is  a 
forgery,  or  that  she  did  not  acknowledge  it  as  the  deed  pur- 
ports, can  overcome  the  prima  facie  case  arising  from  the 
notarial  certificate  of  acknowledgment;  but  she  must  do  so 
by  clear  and  convincing  proof.  The  burden  is  on  her  to  meet 
and  overcome  the  evidence  afforded  by  the  certificate  of  the 
notary,  supported  by  the  attestation  of  the  witnesses,  that  she 
appeared  before  him  as  an  officer  and  acknowledged  the  deed. 


83  THE    SHIFTING    BURDEN  §69 

It  stands  to  reason  that,  in  the  absence  of  an^'thing  to  impeach 
the  integrity  of  the  officer  and  the  witnesses,  no  slight  im- 
portance should  be  attached  to  such  evidence ;  because  it  is 
tlie  evidence  of  an  act  done  in  pursuance  of  law,  which  can 
be  attested  and  proved  in  no  other  way. 

Ford  V.  Osborne,  45  0.  S.  1,  4. 

Feagles  v.  Tanner,  20  C.  C.  86,  11   C.  1).   172. 

(d)  Clear  proof  ought  to  be  made  to  warrant  a  court  in 
holding  that  a  man  who  has  executed  and  acknowledged  a 
deed  and  caused  it  to  be  recorded,  did  not  mean  thereby  to 
part  with  his  title.  And  in  an  action  by  a  wife,  or  a  guardian 
in  her  behalf,  to  have  declared  null  and  void  a  conveyance  of 
her  land  on  the  ground  that  she  was  induced  to  make  it  by 
nndue  influence,  or  that  she  was  not  conscious  of  her  act  in 
executing  the  same,  and  it  appears  from  its  face  that  it  was 
duly  executed  and  acknowledged  in  the  manner  and  form  pre- 
scribed by  statute,  the  plaintiff  must  establish  one  of  said 
grounds  by  clear  and  convincing  ])r(>of. 

Mitrhell  V.  ■Rynn.  ?,  0.  f5.  ^77. 
WiHis  V.  Bnkt-r.  7.1  O.  S.  2!)1. 
See  also  Mr-Adams  v.    ^fcAdanis.   SO   ().   S.   2:!2. 

(e)  Before  restrictive  covenants  can  be  enforced  against 
a  purchaser  whose  deed  does  not  contain  such  restrictions,  it 
must  clearl}'  appear  by  the  evidence,  that  there  was  such  a 
general  plan  of  uniform  restrictions  upon  all  the  lots  in  the 
allotment ;  that  the  deeds  for  lots  in  such  allotment  nniformly 
contained  such  restrictions;  and  that  the  purchaser  had  knowl- 
edge of  such  general  plan  of  uniform  restrictions  at  the  time 
he  ])urchased  his  lot. 

Adams  v.  Donovan,  07  O.  S.  83. 

69.  CLEAR  EVIDENCE  TO  ESTABLISH  A  TRUST. 

(a)  When  it  is  sought  to  establish  an  express  trust  in  the 
case  of  a  conveyance  by  deed  absolute  on  its  face,  it  is  re- 
quisite that  the  evidence  should  be  clear,  certain,  and  con- 
clusive in  ])ro()f.  iiol  oiil\'  of  tlic  existence  of  the  ti'ust  at  the 
time  of  the  conveyance,  but  also  of  its  terms  and  conditions. 


§70  METZLER'S    OHIO    TRIAL    EVIDENCE  84 

The    conveyance   being   absolute   on   its   face,   carries   with    it 
prima  facie  the  power  of  sale  and  conveyance. 

Miller  v.  Stokely,  5  0.  S.  194. 

Stall  V.   Cincinnati,   16  0.  S.   169. 

Boughman  v.   Bouglunan,  69   0.   S.   273. 

Russell  V.   Bluer,   64   0.   S.    1. 

Richards  v.  Parsons,  7  O.  App.  422,  29  O.  C.  A.  359,  31  C.  D.  195. 

(b)  A  deed  absolute  in  its  terms,  and  in  consideration  of 
natural  love  and  affection,  is  repugnant  to  the  existence  of  a 
trust;  and  if,  in  opposition  to  the  terms  of  such  a  deed,  an 
express  trust  coupled  with  an  interest  could  be  set  up  and 
proved  by  circumstantial  evidence,  predicated  on  a  supposed 
concealment  or  fraud  after  the  lapse  of  thirty  years,  it  is 
essential  that  the  evidence  be  so  certain  and  conclusive  as  to 
exclude  every  rational  hypothesis  to  the  contrary,  with  the 
certainty  of  a  positive  written  declaration  of  the  trust. 

Miller  v.  Stokely,  5  0.  S.  194. 

See  LeBaron   v.   Skeels,  24  C.   C.    (X.S.)    505. 

70.  CLEAR  EVIDENCE  TO  REFORM  AN  INSTRUMENT. 

(a)  When  the  reformation  of  a  written  instrument  is 
sought  on  the  ground  of  mistake,  the  presumption  is  so 
strongly  in  favor  of  the  instrument  that  the  alleged  mistake 
must  be  clearly  made  out  by  proofs  entirely  satisfactory;  and 
nothing  short  of  a  clear  and  convincing  state  of  fact  showing 
the  mistake,  will  warrant  the  court  to  interfere  with  and 
reform  the  instrument. 

Potter  V.  Potter.  27  0.  S.  84.  .5. 

Stewart    v.    Gordon.    60    0.    S.    170. 

Snvder  v.  Bank.  22   C.   C.   624,   12   C.  D.   623. 

Gibbons  V.  Day  Co.,  25  C.  C.    (N.S.)    559,  28  C.  D.  359. 

Anderson   v.   Fugman,   22   C.   C.    (N.S.)    283. 

Boynton  v.    Strauss,   18  C.  C.    (N.S.)    229. 

(b)  If  an  insurance  policy  written  by  one  who  is  an  agent, 
within  the  meaning  of  Section  9586  of  the  General  Code,  is 
delivered  and  accepted,  which  by  mutual  mistake  of  the  parties 
insufficiently  describes  the  place  in  which  the  property  is 
located,  the  court  will,  when  the  mistake  is  shown  by  clear 


85  THE    SHIFTING    BURDEN  §71 

and   convincing  proof,   reform   the  policy  so  as  to   state   the 
contract  actually  made. 

Insurance  Co.  v.  Tool  Co..  06  0.  S.  442. 

(c)  The  presumption  being  that  a  contract  as  reduced  to 
writing  embodies  the  real  intention  of  tiie  parties,  courts 
ought  not  to  proceed  on  the  ground  of  mistake  without  very 
clear  and  satisfactory  proof  of  its  existence.  And  when  a 
sealed  contract  made  seventeen  years  before  has  been  in  liti- 
gation for  several  years  without  a  suggestion  of  incorrectness, 
the  proof  must  be  clear  almost  to  demonstration. 

Davenport  v.  Sovil,  6  0.  S.  459. 

Clayton  v.  Freet,  10  O.  S.  544. 

Whitney  v.   Denton,  3  Bull.   870,   7  0.   D.  R.   547. 

71.  CLEAR  EVIDENCE  TO  VARY  COMMERCIAL  PAPER. 

(a)  A  defense  by  an  indorser  that  the  note  was  paid,  and 
that  his  indorsement  was  made  at  plaintiff's  'request  as  a 
memorandum  and  not  for  the  purpose  of  passing  title,  re- 
quires clear  and  convincing  proof. 

dinger  v.  McCxuffey,  55  0.  S.  661. 

See  also  Morris  v.  Faurot,  21  0.  S.   13.3. 

Snyder  v.   Bank,   22   C.   C.   024,    12   C.    D.    023. 

(b)  When  usury  is  pleaded  as  a  defense  to  a  written  in- 
strument in  contradiction  to  its  terms,  the  burden  is  on  the 
party  asserting  the  defense  to  support  it  by  clear  and  satis- 
factory evidence.  But  in  an  action  upon  a  promissory  note, 
where  the  usurious  payments  of  interest  are  set  up  and  asked 
to  be  applied  as  credits  upon  the  principal,  such  defense  may 
be  established  by  a  preponderance  of  the  evidence. 

Boone  v.  .'Andrews.  10  C.  C.    (X.S.)    377,  20  C.  D.  166. 
Clutch  V.  Ebright,  5  O.  App.  440,  27  O.  C.  A.  251. 

(c)  Where  a   decedent  at   the   time  of  his  death  holds   a 

note  signed  by  his  son  or  daughter,   evidence   must   be   clear 

and  convincing  in  order  to  establish  that  the  money  for  which 

the  note  was  given,  is  a  gift  by  way  of  advancement. 

Medill  V.  Fitzgerald.  S  C.  D.   120,   15  C.  C.  415. 
Bullock  V.  Bullock,  15  0.  D.  7S.3,  3  X.  P.    (N.S.)    190,  2. 


§  73  METZLER'S    OHIO    TRIAL    EVIDENCE  86 

72.  CLEAR  EVIDENCE  TO  AFFECT  OFFICIAL  ACTION. 

(a)  The  power  of  a  court  of  record  to  enter  nunc  pro 
tune  the  evidence  of  judicial  action  previously  taken,  should 
be  exercised  only  upon  evidence  which  shows  clearly  and  con- 
vincingly that  such  former  action  was,  in  fact,  taken. 

Jacks  V.  Adamson,  56  0.  S.  397. 

(b)  Where  the  record  or  deed  of  adoption  of  a  child 
states  that  it  was  duly  and  legally  done,  in  order  to  invalidate 
the  adoption,  it  must  be  affirmatively  shown  by  clear  proof 
that  the  adoption  was  irregular  in  some  essential  particular. 

Simpson   V.   Simpson.  0   C.  C.    (X.S.)    137,   19   C.  D.  503. 

(c)  In  an  action  to  set  aside  a  judgment  on  the  ground 
that  the  defendant  was  not  served  with  summons,  the  want  of 
service  must  be  clearly  shown.  And  where  the  evidence  to 
contradict  the  return  of  residence  service  is  not  clear  and  con- 
vincing, it  is-  error  to  set  aside  the  judgment  for  want  of 
service. 

Koefe  V.  Evenden,  Ifi  C.  C.   (N.S.)   516,  25  C.  D.  68. 
Mayer  v.  Groves,  18  C.  C.    (N.S.)    38. 

(d)  In  order  to  establish  a  mistake  of  a  city  council  in 
the  proceedings  preliminary  to  the  making  of  an  improvement, 
or  to  show  an  abuse  of  discretion  in  deciding  who  is  the  low- 
est responsible  bidder,  the  ])roof  must  be  clear  and  satis- 
factory, and  evidence  of  misconduct  and  unfaithfulness  in 
office,  to  warrant  the  removal  of  a  notary  public,  should  be 
clear  and  satisfactory. 

Acklin  V.  Tarkor,  10  C.  C.    (N.S.)    243,  19  C.  D.  625. 
Hubbard  v.   Sandusky.   0   C.  D.    786.   9  C.   C.   638. 
Cf.  Ice  Co.  V.  Cinti.,  6  0.  App.  109,  28  O.  C.  A.  511,  30  C.  D.  296. 
In  re  Hayman,  20  C.  C.  667,   10  C.  D.   815. 

73.  CLEAR   EVIDENCE  TO   ESTABLISH   LOST  INSTRU- 

MENTS. 

(a)  Where  parol  evidence  is  relied  on  to  prove  a  deed 
alleged  to  have  been  lost,  such  evidence  must  clearly  and 
satisfactorily  show  the  existence  and  execution  of  the  sup- 
posed deed,  and  so  much  of  its  contents  as  will  enable  the 
court  to  determine  the  character  of  the  instrument. 

Gillmore   v.   Fitzgerald,  26  0.   S.   171. 

Smith  V.  Xeff,  5  N.  P.  495,  5  0.  D.  449. 


87  THE    SHIFTING    BURDEN  §75 

(b)  Where  a  will  has  been  lost  or  destroj'ed  before  the 
death  of  the  testator,  the  law  presumes  that  he  revoked  it ; 
and  in  order  to  overcome  this  presumption  and  establish  such 
a  will,  the  evidence  of  its  execution  and  of  its  contents  must 
be  clear,  stronof,  positive,  free  from  bias,  and  convincing  be- 
yond a  reasonable  doubt. 

Cole  V.  McClure,  88  0.  S.  1. 

Brewing  Co.  v.  Hard  way,  2  0.  A  pp.  171,  17  C.  C.  (N.S.)  475,  26  C. 
D.  443. 

See  In  re  Will  of  Thompson,  16  N.  P.    (X.S.)    121, 

74.  CLEAR  EVIDENCE  IN  MISCELLANEOUS  CASES. 

(a)  And  in  order  to  establish  the  relation  of  insurer  and 
insured  in  parol  as  existing  before  the  delivery  of  the  policy, 
the  plaintifP  must  do  so  by  full  and  clear  proof,  as  the  con- 
tract is  prima  facie  incomplete. 

Insurance  Co.  v.  Whitman,  75  0.  S.  312. 
See  also   Suydam  v.   Ins.   Co.,   18  Oh.   459. 

(b)  To  enforce  performance  of  a  contract  to  sell  real 
estate  signed  by  an  agent,  it  must  be  shown  that  he  was 
authorized  to  make  the  identical  contract  sued  on.  And  if  the 
agent's  authority  rests  in  parol,  the  proof  must  be  clear  and 
convincing  not  only  of  such  parol  authority,  but  also  that  it 
was  such  as  to  permit  the  inclusion  of  all  the  material  terms 
of  the  contract. 

Spengler  v.  Sonnenberg,  88  0.  S.  192. 

(c)  One  who.  having  a  right,  induces  another  to  act  on 
the  belief  that  the  right  will  not  be  asserted,  Avill  not  after- 
wards be  allowed  to  exercise  it;  nevertheless,  the  burden  is 
upon  the  party  who  relies  upon  the  estoppel,  to  prove  clearly 
and  unequivocally  every  fact  essential  to  the  estoppel. 

Kroll  V.  Close,  82  0.  S.  190,  194. 

75.  CLEAR    EVIDENCE    IN    TRANSACTIONS    NOT 

FAVORED, 
(a)     Gifts  causa  mortis  have  the  nature  of  a  legacy;  and 
the  policy  of  our  law  does  not  favor  them  while  there  is  pro- 
vision by  the  statute  of  wills  and  the  law  of  descents  for  the 
transmission  of  all  property  rights.     0\ir  statutes  should  not 


§75  METZLER'S    OHIO    TRIAL    EVIDENCE  88 

be  defeated  by  such  gifts,  unless  in  a  very  clear  case.  To 
establish  a  gift  causa  mortis,  the  common  law  requires  clear 
and  unmistakable  proof,  not  only  of  an  intention  to  give,  but 
also  of  an  actual  gift  perfected  by  as  complete  a  delivery  as 
the  nature  of  the  property  will  admit  of. 
Gano  V.  Fisk,  43  0.   S.  462,  73. 

(b)  Gifts  inter  vivos,  like  gifts  causa  mortis,  are  watched 

with  caution  by  the  courts.     And  to  support  them,  clear  and 

convincing   evidence   is   required   in   order  that   the   rights   of 

creditors  may  not  be  prejudiced,  that  the  donor  may  not  be 

circumvented  by  fraud,  that  he  may  be  protected  from  undue 

influence,   and   that   efficacy  may   not  be   given  to   donations 

made  under  legal  incapacity.     While   the   evidence  must   be 

clear  and  convincing,  there  is  no  rule  requiring  it  to  be  direct 

and  positive. 

Flanders  v.  Blandy,  45  0.  S.  lOS.  113. 

Miller  v.   McLean,   11   C.   C.    (N.S.)    489,   21   C.  D.   64. 

(c)  In  an  action  to  recover  compensation  for  services, 
when  it  appears  that  the  plaintiff  was  a  member  of  the  family 
of  the  person  for  whom  the  services  were  rendered,  no  obliga- 
tion to  pay  for  the  services  will  be  implied.  The  contract  may 
be  in  writing  or  it  may  rest  entirely  in  parol,  and  it  may  be 
proved  by  direct  or  indirect  evidence.  But  to  entitle  the 
plaintiff  to  recover,  the  contract  must  be  established  by  clear 
and  unequivocal  proof;  as  to  all  other  issues  in  the.  case,  the 
rule  of  preponderance  applies. 

Hinkle  v.  Sage,  07  0.   S.  250. 

Bolsinger  v.  Halliday,  4  0.  App.  311,  22  C.  C.    (N.S.)    289. 

(d)  Cases  of  this  kind  are  odious  and  are  not  favored  by 
the  courts,  because  they  are  a  great  temptation  to  perjury, 
and  afford  opportunity  for  fraud  against  the  estates  of  de- 
ceased persons  by  disappointed  or  avaricious  relatives. 

Hinkle  V.  Sage,  67  0.  S.  256,  62. 

(e)  When  the  circumstances  of  the  case  raise  suspicions 
in  regard  to  the  alleged  contract,  it  requires  clear  and  con- 
vincing evidence  of  an  express  contract.     But  when  there  are 


89  THE    SHIFTING    BURDEN  §  75 

no  such  circumstances,  and  justice  requires  the  finding  of  an 
implied  contract,  the  courts  are  apt  to  so  find. 

Estate  of  Ward,  21   C.  C.  75.3,  12  C.  D.  44. 

Estate  of  Ski-lton,  20  C.   C.  704,  11  C.  D.   372. 

See    Waybright    v.   BonncU.   20   N.   P.    (X.S.)    47.1,   28   O.   D.  270. 

(f)  Where  the  circumstances  do  not  show  some  reason 
for  the  making  of  a  gift  or  performing  service  for  a  relative 
without  charge,  such  an  intention  will  not  be  inferred  simply 
from  the  relationship.  And  where  there  is  no  blood  relation- 
ship between  the  parties,  payment  may  be  enforced  by  a  pre- 
ponderance of  the  evidence. 

Thompson  v.  .Tones.  13  C.  C.   (X.S.)  403,  23  C.  D.  182. 
Rudy  V.  Rudy,  14  C.  C.   (N.S.)  545,  23  C.  D.  35!). 
See  also  Scattergood  v.   Ingram,  SO  0.  S.  76. 

(g)  And  where  the  party  Avho  is  alleged  to  have  made  an 
express  contract  is  a  living  person,  is  the  defendant  in  the 
case  and  is  competent  to  testify,  it  is  sufficient,  in  order  to 
entitle  the  plaintiff  to  recover,  that  the  contract,  whether  in 
writing  or  in  j)arol,  be  established  by  the  preponderance  of 
the  evidence. 

Merrick  v.  Ditzlcr,  91  0.  S.  256. 

(h)  The  statute  provides  that  in  order  to  constitute  a 
defense,  it  must  be  clearly  proved"  that  the  answers  to  inter- 
rogatories in  an  application  for  insurance  were  wilfully  false. 
Although  the  statute  provides  that  it  must  be  clearly  proved, 
it  is  not  error  to  use  words  with  substantially  the  same 
meaning. 

Insurance  Co.  v.  Howie,  62  0.   S.   204,   10. 

Insurance  Co.  v.  Sickles,  2  C.  C.    (N.S.)    222,  13  C.  D.  594. 


CHAPTER  VI. 

THE  DEGREE  OF  PROOF. 

76.  Beyond  a  reasonable  doubt. 

77.  The  charge  in  criminal  cases. 

78.  Defense  of  "not  <i■uilt^^" 

79.  Defense  of  alibi. 

80.  Independent  defenses. 

81.  Defense  of   insanity. 

82.  Defense  of   self-defense. 

83.  By  a  preponderance. 

84.  Criminal  and   tortious  acts. 

85.  In  the  contest  of  wills. 

86.  In  negligence  cases. 

87.  In  attachment. 

88.  In  injunction. 

89.  In  special  proceedings. 

76.  BEYOND  A  REASONABLE  DOUBT. 

(a)  Upon  the  trial  of  all  criminal  eases,  the  burden  of 
proof  is  npon  the  pro.seentor  unless  a  different  rule  has  been 
provided  by  statute.  The  presumption  of  innocence  can  be 
overcome  only  by  full  proof,  such  as  will  exclude  all  reason- 
able doubt  of  the  o:uilt  of  the  accused.  This  is  the  rule  be- 
cause the  presumption  of  innocence  is  a  strong  one. 

Fuller  V.  State,  12  0.  ?^.  4.33. 
Fastbinder  v.  State,  42  0.  S.  341,  ;1. 
Nickels  v.  State,  22   C.   C.    (X.S.)    23G. 

(b)  In  criminal  cases,  where  compensation  for  the  injury 
done  is  not  an  element,  and  the  sole  object  of  the  prosecution 
is  punishment,  a  humane  principle  is  introduced  which  re- 
quires that  the  guilt  of  the  accused  should  be  proved  beyond 
a  reasonable  doubt.  This  principle  is  often  expressed  in  the 
maxim,  "It  is  better  that  ninety  and  nine  guilty  persons  should 
go  acquit,  than  that  one  innocent  person  should  be  punished." 

Jones  V.  Greaves,  26  0.   S.  2,  4. 

(c)  A  plea  of  not  guilty  in  a  criminal  case  puts  in  issue 
all  material  facts,  including  the  corpus  delicti.     Every  essen- 

90 


91  THE    DEGREE    OF    PROOF  §  76 

tial  element  in  the  charge  must  be  proved  beyond  a  reasonable 
doubt.  And  in  passing  upon  the  question  as  to  whether  or  not 
the  verdict  is  clearly  against  the  weight  of  the  evidence,  a 
reviewing  court  will  take  into  consideration  the  rule  as  to  the 
quantum  of  proof  necessary  to  convict. 

Morgan  v.  State,  4S  0.  S.  371. 

Premack  v.  State,   11   C.   C.    (X.S.)    364,  20  C.   D.   S28. 

Adams  v.  State,  31  0.  S.  462. 

Coles  V.  State,  13  C.  D.  313,  3  C.  C.    (X.S.)    420. 

(d)  Where  reliance  for  conviction  is  upon  circumstantial 
evidence,  it  is  not  necessary  that  a  circumstance  should  be 
proved  beyond  a  reasonable  doubt,  unless  it  is  a  necessary 
link  in  a  chain  of  circumstances,  and  this  chain  of  circum- 
stances is  necessary  to  a  conviction.  A  person  may  be  prop- 
erly convicted  by  a  large  number  of  circumstances,  no  one  of 
which  alone  is  established  beyond  a  reasonable  doubt. 

Breck  v.  State,  4  C.  C.  160,  2  C.  D.  477. 
Murray  v.   State,  23   C.   C.    (X.S.)    508. 
Cf.  Lowther  v.  State,   18   C.  C.    (X.S.)    192. 

(e)  An  intent  to  kill  is  an  essential  element  of  the  crime 
of  murder,  and  must  be  established  beyond  a  reasonable 
doubt.  And  in  a  trial  upon  an  indictment  containing  two 
counts,  one  for  assault  with  intent  to  rape  and  the  other  for 
assault  with  intent  to  rob,  the  intent  is  a  subsrantivo  ]>art  of 
the  offense  and  must  be  proved  beyond  a  reasonable  doubt. 

Jones  V.  State,  .51  0.  S.  331. 

Coles  V.  State,  13  C.  T>.  313,  3  C.  C.   (X.S.)    420. 

(f)  "Where  evidence  of  other  offenses  of  a  similar 
character  is  competent  to  prove  intent,  and  the  aecu.sed  has 
not  theretofore  been  convicted  of  such  offenses,  the  burden  is 
upon  the  state  to  prove  that  the  accused  is  guilty  of  such 
other  offenses  by  the  same  degree  of  proof  as  is  required  in 
all  criminal  cases. 

Baxter  v.  State,  91  0.  S.  167. 

(g)  The  amendment  to  the  Constitution  of  1012,  relating 
to  the  failure  of  a  defendant  in  a  criminal  prosecution  to  take 
the  stand  and  testify,  in  no  way  lessens  the  proof  required 
before  a  conviction  can  be  had,  nor  does  it  change  the  well- 


§77  METZLER'S    OHIO    TRIAL    EVIDENCE  92 

settled  rule  of  procedure  that  before  a  defendant  can  be  called 
upon    to    produce    his    defense    the    state    must    prove    every 
essential  element  of  the  crime  charged. 
Tarker  v.  Dover,  18  N.  P.   (N.S.)   465. 

(h)  Before  a  court  can  find  a  person  guilty  of  contempt, 
the  charge  must  be  proved  beyond  a  reasonable  doubt.  Con- 
tempt proceedings  are  quasi-criminal  in  their  nature,  and  all 
the  presumptions  are  in  favor  of  the  innocence  of  ihe  persons 
charged. 

Hunt  V.    State,   5   C.   C.    (X.S.)    621,    17   C.   D.    IG. 

Moulders'  Union  v."  C.reenwakl,   16  0.  D.  678,  4  X.  P.    (X.S.)    161,  82. 

See  Loney  v.  Hall,  8  0.  App.  154,  28  O.  C.  A.  14,  29  C.  D.  453. 

(i)  In  order  to  warrant  a  conviction  under  an  indictm.ent 
for  perjury,  there  should  be  at  least  one  witness  to  the  corpus 
delicti,  or  the  falsity  of  the  matter  assigned  as  perjury,  and 
that  the  testimony  of  such  witness  be  coj^roborated  either  by 
another  witness  or  by  circumstantial  evidencij  sufficiently 
strong  to  satisfy  the  jury  beyond  a  rccisonable  doubt  of  the 
guilt  of  the  accused. 

State  V.   Courtright,  66  0.  S.   35. 

(j)  The  corroborative  evidence  need  not  be  of  sufficient 
force  to  equal  the  positive  testimony  of  another  witness,  or 
such  as  would  require  a  jury  to  convict  iu  a  case  in  which  a 
single  witness  is  sufficient ;  but  it  must  be  such  as  gives  a 
clear  preponderance  to  the  evidence  in  favor  of  the  state,  and 
establishes  the  falsity  of  the  oath  beyond  a  reasonable  doubt. 

Crusen  v.  State,  10  0.  S.  258. 

77.  THE  CHARGE  IN  CRIMINAL  CASES. 

(a)  One  on  trial  for  a  crime  is  not  denied  the  benefit  of 
a  reasonable  doubt  by  the  instruction  to  the  jury  that  there 
should  be  a  verdict  of  guilty,  if  a  full  and  candid  considera- 
tion of  the  evidence  produces  a  conviction  of  guilt,  and  satis- 
fies the  mind  to  a  reasonable  certainty;  but  that  there  should 
be  an  acquital  if  the  evidence  establishes  only  strong  prob- 
abilities of  guilt. 

State  V.  Allen,  68  0.  S.  516. 

See  also  Clark  v.  State,  12  Oh.  483,  05. 

Campanario  v.   State,  17   C.  C.   (N.S.)    388. 


93  THE     DEGREE     OF     PROOF  §  ^J 

(b)  In  defining  reasonable  doubt,  it  is  not  error  to  charge 
the  jury  that  if  they  Avould  act  upon  such  evidence  in  the 
most  important  affairs  of  their  lives,  then  it  is  safe  to  say  tliat 
they  have  been  convinced  beyond  a  reasonable  doubt. 

Geer  v.  State,  16  C.  C.    (X.S.)    lol. 

(c)  "Where  reliance  for  conviction  is  placed  on  circumstan- 
tial evidence,  the  jury  should  be  instructed  that  the  facts  and 
circumstances  upon  whirh  the  theory  of  guilt  is  based  should 
be  shown  beyond  a  reasonable  doubt,  and  when  taken  to- 
gether must  be  so  convincing  as  to  be  irreconcilable  with  the 
claim  of  innocence  and  admit  of  no  other  hypothesis  than  the 
guilt  of  the  accused. 

Carter  v.  State,  4  0.  App.   103.  22  C.  C.    (X.S.)    154. 
Fastbinder  v.  State,  42  0.  S.  341,  5. 
Moore  v.   State,   2  0.   S.   500,  7. 

(d)  The  proper  charge  to  a  jury  in  a  criminal  case  is  that 
the  jury  and  not  that  each  juror  should  be  convinced  beyond 
a  reasonable  doubt  of  the  guilt  of  the  accused  before  finding 
him  guilty.  To  charge  the  jury  that  each  juror  must  be  con- 
vinced would  seem  to  invite  an  acquittal  or  at  least  a  dis- 
agreement, and  woidd  therefore  be  misleading.  Tf  the  ac- 
cused is  in  doubt  as  to  whether  the  verdict  is  that  of  each 
juror,  his  remedy  is  to  have  the  jury  polled. 

Davis  V.  State,  63  0.  S.  173,  4. 

Cf.   McGuire  v.   State,  3   C.   C.  551,  2   C.  D.   318. 

Geer  v.   State,   16  C.   C.    (X.S.)    151. 

(e)  An  instruction  to  a  jury  that  a  reasonable  doubt  is  a 
r  ^"bt  that  you  as  jurors  can  give  a  reason  for,  is  inaccurate 
j^iid  misleading;  and  the  fault  is  not  cured  by  prefacing  the 
statement  Avith  the  instruction  that  by  a  reasonable  doubt  is 
meant  not  a  cajitious  or  whimsical  doubt. 

Morgan  v.   State,  49  0.  S.   371. 

Cf.  Cromley   v.   State,    19   C.  C.    (X.S.)    526,   ■>()   C.   1).  200. 

(f)  A  charge  to  the  jnry  in  a  crimiiuil  case  is  erroneous 
which  directly  or  inferentially  assumes  that  doubts  as  to  the 
guilt  of  the  defendant  are  prima  facie  unreasonable,  and  by 
which  the  jurors  are  cautioned  and  directed  not  to  respect 


§78  METZLER'S   OHIO   TRIAL    EVIDENCE  94 

such  doubts  until  an  ineffectual  effort  has  been  made  by  them 
to  divest  their  minds  of  the  same. 
Rose  V.  State,  7  C.  D.  226,  13  C.  C.  342. 

78.   DEFENSE  OF  "NOT  GUILTY." 

(a)  The  general  rule  placing  the  burden  of  proof  upon 
the  prosecution  is  clearly  applicable  in  every  case  where  the 
defendant  by  pleading  "not  guilty"  alone,  and  without  quali- 
fication, stands  upon  a  negative  allegation,  and  does  not  rely 
upon  any  facts  which  are  separate  and  distinct  from,  or  in- 
dependent of,  the  original  transaction  set  forth  in  the  indict- 
ment. By  such  a  plea,  the  prisoner  restricts  himself  to  deny- 
ing and  disproving  the  facts  involved  in  the  original  transac- 
tion, including,  of  course,  all  the  accompanying  circumstances. 

Stick  V.  State,  3  C.  C.    (N.S.)    611,  13  C.  D.  392,  5. 

(b)  In  a  prosecution  for  murder  where  the  defendant 
denied  that  he  entertained  a  purpose  to  kill  anyone,  or  that 
he  even  intended  to  fire  the  gun,  and  gave  evidence  tending  to 
prove  that  the  homicide  was  accidental,  it  was  said  that  this 
was  not  an  affirmative  defense  analogous  to  a  plea  of  confes- 
sion and  avoidance;  that  the  effect  of  such  evidence  was 
simply  to  controvert  an  inference  of  an  intent  to  kill,  which 
may  have  arisen  from  the  evidence  introduced  by  the  state. 

Jones  V.  State,  51  0.  S.  331,  41. 

(c)  "Where  an  accused  person  denies  that  he  committed 
the  crime  charged,  and  claims  that  by  reason  of  drunkenness 
he  was  physically  incapable  of  committing  such  an  offense, 
and  offers  testimony  to  that  effect,  it  is  error  to  charge  the 
jury  that  the  burden  is  upon  the  accused  to  show  such  want 
of  capacity  to  commit  the  crime,  inasmuch  as  such  a  charge 
imposes  upon  him  the  burden  of  proving  that  he  did  not  com- 
mit the  crime,  which  is  contrary  to  fundamental  principles  of 
law. 

Jeffers  v.  State,   10  C.  D.   832,  20  C.   C.  294. 

(d)  In  a  prosecution  for  the  forgery  of  a  promissory  note, 
when  the  defendant  admits  the  making  of  the  signature,  the 
burden  is  not  on  him  to  prove   that  he  had  authority.     In 


95  THE    DEGREE    OF    PROOF  §  79 

such  case,  the  burden  remains  on  the  state  to  prove  that  the 
making  of  the  signature  Avas  without  authority,  before  a  con- 
viction can  be  had.  This  is  not  an  independent  affirmative 
defense;  it  simply  controverts  the  truth  of  a  material  aver- 
ment of  the  indictment. 

Romans  v.   State,   51   0.   S.   528,   30. 

(e)  In  a  prosecution  for  the  violation  of  the  local  option 
law,  it  is  error  to  charge  the  jury  that  the  record  of  the  town- 
ship trustees  makes  a  prima  facie  case  that  the  sale  is  pro- 
hibited, and  that  it  then  devolves  upon  the  defendant  to  show 
by  a  preponderance  of  the  evidence  that  the  election  was 
illegal.  The  burden  is  upon  the  state  to  show  beyond  a  rea- 
sonable doubt  that  the  election  was  held  in  conformity  to  the 
statute. 

Stick  V.  State,  13  C.  D.   392,   3   C.   C.    (N.S.)    611. 

(f)  If  it  appear  on  the  trial  of  one  charged  with  rape 
that  he  is  a  boy  under  fourteen  years  of  age,  the  burden  is 
on  the  state  to  prove  capacity  to  commit  the  crime;  and  if 
the  court  enumerate  certain  facts  which  are  of  no  determin- 
ate value,  and  say  to  the  jury  that  if  they  are  proved,  the 
burden  is  on  the  accused  to  show  want  of  capacity,  it  is  error. 

Hiltabiddle  v.  State,  35  0.  S.  52. 
See  Williams  v.  State,  14  Oh.  222. 

(g)  But  where  the  statute  provides  that  the  keeping  of 
intoxicating  liquors  in  dry  territory  in  any  place  except  a 
drug-store  or  private  residence,  shall  be  prima  facie  evidence 
that  such  liquors  are  kept  for  unlawful  sale,  furnishing  or 
giving  away,  a  conviction  wall  be  sustained  upon  evidence  of 
this  fact  alone.  The  court  said  that  the  burden  of  proof  M-as 
changed  by  the  statute;  but  it  seems  that  there  was  only  a 
prima  facie  case  for  the  defendant  to  answer. 

Xiekels  V.   State,  22   C.   C.    (X.S.)    236. 

79.  DEFENSE  OF  ALIBI. 

(a)  Where  the  evidence  tends  to  prove  the  commission  by 
the  defendant  of  the  crime  charged  in  the  indictment  at  a 
particular  time  and  place,  and  the  defendant  offers  evidence 


§  80  METZLER'S    OHIO    TRIAL    EVIDENCE  96 

tending  to  show  that  at  such  time  he  was  at  another  place,  it 
is  error  for  the  court  to  charge  the  jury  that  testimony  tend- 
ing to  show  such  alibi  is  not  to  be  considered,  unless  it  estab- 
lishes the  fact  by  a  preponderance  of  evidence ;  for  an  alibi 
need  not  be  proved  by  a  preponderance  of  evidence. 

Walters  v.  State,  30  0.  S.  215. 
Burns  v.  State,  75  0.  S.  407. 

(b)  The  burden  of  proof  is  not  changed  when  the  defend- 
ant undertakes  to  prove  an  alibi.  If  by  reason  of  the  evi- 
dence in  relation  to  such  alibi,  the  jury  should  entertain 
reasonable  doubt  as  to  the  defendant's  guilt,  he  should  be 
acquitted,  although  the  jury  might  not  be  able  to  find  that  the 
alibi  was  fully  proved. 

Walters  v.  State,  39  0.  S.  215. 
Burns  v.  State,  75  0.  S.  407. 

(c)  A  defense  of  an  alibi  is  as  proper  and  legitimate,  if 
proved,  as  any  other;  and  the  evidence  bearing  upon  it  should 
be  carefully  considered.  The  jury  must  consider  all  the  evi- 
dence in  the  case,  including  that  relating  to  the  alibi,  and 
determine  from  the  whole  evidence  whether  it  was  shown 
beyond  reasonable  doubt  that  the  defendant  had  committed 
the  crime  with  which  he  was  charged. 

Burns  v.  State,  75  0.  S.  407. 
Walters    v.    State,    39    0.    S.    215,    7. 

(d)  In  such  a  case,  it  is  error  for  the  court  to  charge  the 
jury  that  an  alibi  is  a  defense  set  up  by  the  defendant,  which 
can  only  be  satisfactorily  maintained  by  proof  which  renders 
it  impossible  that  he  could  have  committed  the  act. 

Gawn  V.  State,  7  C.  D.  19.  13  C.  C.  IIR. 

80.  INDEPENDENT  DEFENSES. 

(a)  The  principle  that  the  burden  of  proof  is  on  the  state 
in  criminal  cases  has  reference  to  the  establishment  of  the 
corpus  delicti,  and  the  defendant's  complicity.  When  the  de- 
fendant relies  upon  distinct  substantive  matter  for  exemption 
or  immunity,  the  burden  of  proving  such  matter  is  on  the 
defendant. 

State  V.  Sappienza,  84  0.  S.  63,  70. 


97  THE    DEGREE    OF    PROOF  §  81 

(b)  The  accused  must  prove  the  independent  exculpatory- 
facts  upon  which  he  relies.  When  a  party  claims  to  control 
the  legal  effect  of  facts  by  the  alleged  existence  of  other  facts, 
the  burden  is  on  him  to  show  a  preponderance  of  evidence  in 
favor  of  the  existence  of  the  latter.  In  such  cases,  the  com- 
mission of  the  act  is  admitted  and  then  justified  or  excused  by 
necessity  or  irresponsibility.  Such  defenses  are  in  the  nature 
of  confession  and  avoidance. 

Sihnis  V.  Stato,  22  0.  S.  90,  101.  ' 

Stick  V.  State,   3  C.  C.    (X.S.)    611,  13  C.  D.   302,  5. 

Effinger  v.  State,  9  C.  C.  376,  6  C.  D.  417. 

(c)  Where,  in  the  trial  of  an  indictment  for  robbery,  it  is 
proved  beyond  a  reasonable  doubt  that  the  defendant  was 
present  at  the  time  and  place  of  the  crime  and  participated  in 
the  acts  which  constituted  the  robbery,  and  the  defense  inter- 
poses a  plea  of  duress,  the  burden  is  not  on  the  state  to  dis- 
prove such  plea ;  but  is  on  the  defendant  to  maintain  his  plea 
by  a  preponderance  of  the  evidence. 

State  V.  Sajpienza,  84  0.  S.  63. 

81.  DEFENSE  OF  INSANITY. 

(a)  The  burden  of  proof  to  establish  the  defense  of  in- 
sanity in  a  criminal  case  rests  upon  the  defendant ;  but  a  bare 
preponderance  of  the  evidence  is  sufficient.  It  is  not  neces- 
sary to  establish  the  defense  beyond  a  reasonable  doubt. 

Bond  V.  State,  23  0.  S.  349. 

State  V.  Austin,  71  0.  S.  317. 

LoefTner  v.   State,   10  0.   S.   508. 

Sharkey  v.  State,  2  C.  D.  443,  4  C.  C.  101. 

(b)  In  a  trial  for  niurd(M\  wliere  tlie  accused  sets  up  his 
insanity  as  a  defense,  the  rule  is  the  same.  He  is  bound  to 
establish  it  by  a  preponderance  of  the  evidence ;  and  he  should 
be  held  to  no  higher  degree  of  proof. 

Kcloh  V.  State,  55  0.  S.  146. 
Bergin  v.  State,  31  0.  S.  111. 
State  V.  Austin,  71  0.  S.  317. 

(c)  The  proof  should  be  deemed  to  preponderate  in  favor 

of  this,  as  of  any  other  disputed  fact,  whenever  its  existence 
metzlek'.s  tki.\i.  ev. 


§  81  METZLER'S   OHIO   TRIAL    EVIDENCE  98 

is  made  probable  upon  a  full  and  fair  consideration  of  all  the 
evidence  adduced  for  and  against  it. 

Kelch  V.  State,  55  0.  S.  14G. 

Sliarkey  v.  State,  2  C.  D.  443,  4  C.  C.   101. 

Contra,  Clark  v.  State,  12  Oh.  4S3,  95. 

(d)  It  is  error  to  instruct  the  jury  that  the  evidence  in- 
troduced to  establish  insanity  is  not  sufficient  if  it  merely 
shows  it  to  have  been  probable;  that  the  proof  must  be  such 
as  to  overcome  the  legal  presumption  of  sanity ;  and  that  it 
must  satisfy  you  that  he  is  insane.  This  charge  requires  of 
the  defendant  more  than  a  preponderance  of  the  evidence  to 
maintain  this  defense.  And  a  charge  cautioning  the  jury  not 
to  suffer  an  ingenious  counterfeit  to  protect  guilt  is  mislead- 
ing and  prejudicial,  if  there  is  no  evidence  of  simulation. 

Kelch  V.  State,  55  0.  S.  146. 

Contra,  Clark  v.  State,  12  Oh.  4S3,  95. 

Sharkey  v.  State,  2  C.  D.  443,  4  C.  C.  101. 

(e)  Proof  of  prior  insanity  of  the  accused  does  not  shift 

the  burden  of  proof,  but  all  along  it  rests  with  the  defendant ; 

and  he  must  show  by  a  prei)onderance  of  the  evidence  that,  at 

the  time  of  the  commission  of  the  offense,  he  was  then  so  far 

mentally  deranged  as  not  to  be  accountable  for  his  act. 

State  V.  Austin,  71  0.  S.  317. 
Wheeler  v.  State,  34  O.   S.   394,  6. 
Contra,  Clark  v.  State,  12  Oh.  483,  95. 

(f)  In  the  trial  of  an  indictment  for  murder,  the  defense 
of  insanity  under  the  plea  of  not  guilty  does  not  change  the 
nature  of  the  issue  so  as  to  give  the  afifirmative  to  the  defend- 
ant, and  entitle  him  to  the  opening  and  closing  argument  to 
the  jury. 

Loeffner  v.  State,  10  0.   S.   598. 

(g)  In  a  proceeding  under  Sections  1360S-9  of  the  General 
Code  (Section  7240  R.S.),  to  ascertain  whether  a  person  under 
indictment  for  a  crime,  is  or  is  not  sane  at  the  time  of  trial, 
the  accused  has  the  affirmative ;  and  the  burden  is  upon  him 
to  show  by  a  preponderance  of  the  evidence  that  he  is  not 


99  THE    DEGREE    OF    PROOF  §  83 

sane.  But  on  application  for  the  appointment  of  a  <ruardiau 
for  a  person  allegred  to  be  an  imbecile,  the  burden  of  proof  is 
upon  the  person  making  the  application. 

State  V.  ^fyerg.  S  0.  "D.  679,  7  X.  P.  638. 
In  re  Shelleig,  8  X.  P.  399,  11  0.  D.  81. 

82.  DEFENSE  OF  SELF-DEFENSE. 

(a)  On  the  trial  of  an  indictment  for  murder,  or  for  mali- 
cious shooting  or  for  shooting  with  intent  to  kill,  the  burden 
of  proving  that  the  act  was  excusable  on  the  ground  of  self- 
defense  rests  on  the  defendant ;  and  this  defense  must  be 
established  by  a  preponderance  of  the  evidence. 

Silviis  V.  State,  22  0.  S.  90. 

Carr  v.  State,  11  C.  D.  353,  21  C.  C.  43. 

Szalkai  v.  State,  96  O.  S.  36. 

State  V.  Vaneak,  90  0.  S.  211,  4. 

Weaver  v.  State,  24  0.  S.  584. 

(b)  But  before  a  defendant  in  a  homicide  ease  can  be 
required  to  establish  self-defense  by  a  preponderance  of  the 
evidence,  the  state  must  establish  that  the  killing  by  him  was 
an  unlawful  killing  within  the  degree  of  the  crime  charged. 

Taylor  v.  State,  12  C.  C.  (N.S.)  486,  21  C.  D.  602. 

(c)  In  instructing  the  jury  it  would  be  error  to  charge 
that  the  burden  is  on  the  state  to  show  beyond  a  reasonable 
doubt  by  affirmative  evidence,  otherwise  than  by  tlie  i)resunip- 
tion  arising  from  the  homicide,  that  the  fatal  wound  was  not 
inflicted  by  the  defendant  in  self-defense. 

Silviis  V.  State,  22  0.  S.  00,  00. 

See  also  Turner  v.  State,  5  C.  C.  537,  3  C.  D.  263. 

83.  BY  A  PREPONDERANCE. 

(a)  On  the  trial  of  civil  actions,  the  issue  is  determined  in 
accoi-danee  with  the  pre})onderance  or  weight  of  the  evidence; 
and  the  verification  of  a  pleading  does  not  make  other  or  greater 
proof  necessary  on  the  side  of  the  adverse  j)arty.  Tlie  rule  is 
that  he  who  affirms  must  prove;  and  when  the  whole  of  the 


§  83  METZLER'S    OHIO    TRIAL    EVIDENCE  100 

evidence  upon  the  issue  involved  leaves  the  ease  in  equipoise, 
the  party  affirming  must  fail. 

Klunk  V.  Railway,  74  0.  P.  125. 
Insurance  Co.  v.  Paver,   10  Oh.   S24. 
Ilargraves  v.  Miller,   16  Oh.  308. 
Section    11359,   General   Code. 

(b)  The  proof  should  be  deemed  to  preponderate  in  favor 
of  any  disputed  fact,  whenever  its  existence  is  made  probable 
upon  a  full  and  fair  consideration  of  ail  tlie  evidence  adduced 
for  and  against  it.  The  reason  of  the  rule  no  doub""  is  that 
as  between  man  and  man,  where  a  loss  must  fall  upon  one  or 
the  other,  it  is  right  that  the  law  should  cast  it  upon  him  Vv-ho 
is  shown  to  have  been  the  cause  of  the  loss  by  proof  est-.blish- 
ing  the  reasonable  probability  of  the  fact. 

Kckh  V.  State,  55  0.  S.  146. 

Drucker  v.  Home  City,  12  C.  C.    (X.S.)    309,  21  C.  D.  466. 

Jones  V.  Greaves,  26  O.  S.  2,  4. 

(c)  In  the  trial  of  a  civil  action,  wliere  the  preponderance 
of  the  proof  is  to  determine  the  issues,  the  court  or  jury  deals 
simply  M'ith  the  probabilities  in  the  case.  And  when  the  jnry 
is  asked  to  find  specially  whether  a  particular  fact  exists,  and 
it  answers  "probably  not,"  this  is  a  finding  that,  for  the 
purposes  of  the  case,  the  fact  docs  not  exist. 

Davis  V.  Guarnieri,  45  0.  S.  470. 

Cf.  Castings  Co.  v.  Luscomb,  6  C.  D.  313,  19  C.  C.  673. 

(d)  As  the  jury  deals  onl}^  Avith  probabilities  in  civil 
cases,  and  the  burden  of  proof  is  ordinarily  carried  by  a  pre- 
ponderance of  the  evidence,  an  instruction  that  the  jury 
must  be  satisfied  by  a  preponderance  of  the  evidence  is  mis- 
leading and  erroneous.  The  rule  is  not  that  the  jury  must  be 
satisfied,  nor  that  the  proof  must  be  to  t'e  f:itist'n--''nn  rf  the 
jury;  but  a  party  not  prejudiced  will  not  be  heard  to  com- 
plain. 

Railway  Co.  v.  Frye,  80  O.  S.  2S9. 

Kelch  v.  State,  55  O.  S.  146,  52. 

Railway  Co.  v.  Linn,  77  O.  S.  G15. 

Buttemiller  v.  Schmid,  4  0.  App.  100,  25  C.  C.  (X.S.)   201,  26  C.  D.  50. 


101  THE    DEGREE    OF    PROOF  §  84 

(e)  It  is  error  in  a  case  requiring  a  mere  preponderance 
of  evidence  to  charge  that  the  jury  must  be  satisfied  by  a  fair 
preponderance ;  for  such  a  charge  requires  more  than  a  mere 
preponderance.  Fair  preponderance  of  evidence  means  clear 
preponderance.  There  are  no  degrees  of  preponderance ;  if 
the  evidence  preponderates  at  all.  however  slightly,  it  is  suffi- 
cient. 

Russell  V.  Russell,  6  C.  C.  294,  3  C.  D.  460. 

Effinger  v.  State,  9  C.  C.  376,  6  C.  D.  417. 

Insurance  Co.  v.  Rosch,  3  C.  C.   (X.S.)    156,  13  C.  D.  491. 

Ryan  v.  Schardt,  12  C.  C.    (X.S.)    2Gn,  22  C.  D.  445. 

See  Hotel   Co.   v.  Brough,  2G  C.   C.    (N.-^.)    ISJ. 

(f)  However,  a  charge  by  the  court  in  an  appropriation 
ease  that  the  burden  of  proof  is  upon  the  property  owners  to 
establish  the  value  of  the  land  by  a  fair  preponderance  of  the 
evidence,  was  held  not  improper  in  such  a  proceeding. 

Gibson  v.  Norwalk,  7  C.  D.  6,  13  C.  C.  428. 

84.  CRIMINAL  AMD  TORTIOUS  ACTS. 

(a)  The  issue  is  determined  in  accordance  with  the  pre- 
ponderance or  weight  of  the  evidence ;  it  need  not  be  proved 
beyond  a  reasonable  doubt,  even  in  cases  wherein  the  claim 
or  defense  is  based  on  facts  which  amount  to  an  indictable 
offense.  It  is  difficult  to  see  how  a  person  who  wrongs  an- 
other without  criminal  intent,  and  is  liable  in  damages  on  a 
mere  preponderance  of  the  evidence,  can  shelter  himself  from 
liability  behind  a  reasonable  doubt  by  merely  adding  to  the 
wrongful  act  a  criminal  purpose. 

Jones  V.  Greaves,  26  0.  S.  2,  5. 

Contra,  Ins.   Co.   v.   Paver,   1:5   Oh.   .",24,   31. 

Weaver  v.  Linneman,  3  0.  L.  R.  424,   13  O.  D.  340. 

(b)  A  finding  for  the  government  against  the  citizen  may 
be  followed  by  deprivation  of  life  or  liberty,  and  hence,  the 
propriety  of  the  rule  that  no  such  finding  should  be  made 
without  the  strong  and  clear  proof  required  by  'tlic  rule — 
beyond  a  reasonable  doubt.  But  in  a  controversy  betv;een 
man  and  man  affecting  nothing  but  a  claim  or  a  defense  to 
damages,  and  involving  nothing  but  i)ecuniary  or  property 
interests,  the  reason  of  the  rule  wholly  fails;  and  the  parties 


§84  METZLER'S    OHIO    TRIAL    EVIDENCE  102 

should  be  on  an  equality  as  to  the  quantum  of  proof  required 
to  establish  any  material  fact. 
Bell  V.  McGinness,  40  0.  S.  204,  5. 

(c)  On  the  trial  of  a  civil  action  wherein  the  claim  or  de- 
fense is  based  on  an  alleged  fraud,  the  issue  may  be  deter- 
mined in  accordance  with  the  preponderance  or  weight  of  the 
evidence,  whether  the  facts  constituting  the  alleged  fraud  do, 
or  do  not,  amount  to  an  indictable  offense, 

Jones  V.  Greaves,  26  0.  S.  2. 

Strader  v.   Mullane,   17   0.   S.   624. 

Dougherty  v.  Sclilotman,  1  C.  S.  C.  R.  292,  S. 

(d)  In  an  action  for  assault  and  battery,  it  is  not  neces- 
sary for  the  plaintiff  to  prove  the  assault  and  battery  beyond 
a  reasonable  doubt.  A  preponderance  of  the  evidence  is 
sufficient. 

Shaul  V.  Xorman,  34  0.  S.  157,  8. 

(e)  In  an  action  of  slander  for  words  which  imputed  to 
the  plaintiff  the  crime  of  stealing  a  horse,  the  defendant 
pleaded  the  truth  of  the  defamatory  w^ords ;  and  it  was  held 
that  in  order  to  maintain  this  defense,  it  was  not  necessary 
that  it  be  proved  beyond  a  reasonable  doubt. 

Bell  V.  McGinness,   40  0.   S.   204. 

(f)  In  a  civil  action  under  the  statute  founded  on  an 
unlawful  sale  of  liquor,  a  preponderance  of  evidence  is  suffi- 
cient to  prove  the  unlawful  sale.  And  in  an  action  to  recover 
losses  at  gambling,  a  preponderance  of  the  evidence  is  all  that 
is  required. 

Lyon  V.   Fleahmiin,  34   0.    S.   151. 

Kolling  V.  Bennett,   18  C.   C.  425,  10  C.  D.  81. 

See  Nassr  v.  Upton,  4  O.  App.  202,  25  C.  C.    (X.S.)    193. 

(g)  In  an  action  by  a  colored  person  to  recover  a  penalty 
under  Section  12940  of  the  General  Code  (R.  S.  Sec.  4426-2), 
a  preponderance  of  the  evidence  is  sufficient  to  authorize  a 
recovery,  though  the  act  complained  of  Avas  also  punishable 
criminally. 

DcVeaux  v.  Clemens,  17  C.  C.  C3,  9  C.  D.  647. 


103  THE  DEGREE  OF  PROOF  §  85 

85.   IN  THE  CONTEST  OF  WILLS. 

(a)  Proceedings  to  contest  the  validity  of  a  will  under 
tlie  statute  are  in  the  nature  of  an  appeal  from  the  order  of 
probate.  All  the  material  facts  in  issue  are  to  be  heard  and 
determined  de  novo,  as  though  such  order  of  probate  had  not 
been  made. 

TTaynes  v.  Haynes,  ?..*?  0.  S.  598. 

West  V.  Knoppenberger,   16   C.   ]).   IGS,  4  C.  C.    (X.S.)    305. 

(b)  The  statute  provides  that  the  party  sustaining  the 
will  shall  be  entitled  to  open  and  close  the  evidence  and  argu- 
ment. He  must  offer  the  will  and  probate,  and  rest.  The 
opposite  party  then  shall  offer  his  evidence;  the  party  sus- 
taining the  will  then  must  offer  his  other  evidence.  Eebutting 
evidence  may  be  offered  as  in  other  eases.  The  statute  also 
provides  that,  on  the  trial  of  such  issue,  the  order  of  probate 
shall  be  prima  facie  evidence  of  the  due  attestation,  execution, 
and  validity  of  the  will  or  codicil. 

Section   12085,  General  Code. 
Section    120S3,   General   Code. 

(c)  The  effect  of  the  statute  making  the  order  of  probate 
prima  facie  evidence  is  to  transfer  the  burden  of  proof  from 
the  propounders  or  contestees  to  the  contestants  of  the  Avill. 
In  the  further  progress  of  the  trial,  there  is  no  such  change 
of  the  burden  of  proof  in  law  as  to  requfre  of  the  court,  in  the 
charge  to  the  jury,  to  instruct  them  that,  in  respect  to  any 
particular  issue  or  item  of  evidence,  the  burden  of  proof  is 
thrown  back  from  the  contestants  to  the  contestees, 

;Mears  v.  Mears,  15  0.  S.  90. 

(d)  When  the  will  and  probate  are  offered  by  those  claim- 
ing under  the  will,  our  statute  docs  not  imi)()se  upon  th(Mn  the 
necessity  of  giving  some  reasonal)le  exphuiation  of  any  un- 
natural provision  that  may  apj)ear  in  the  Avill ;  but  tiie  bui'dcn 
of  proof  is  upon  the  contesting  party  to  .show  that  such  Avill 
was  the  offsjjring  of  mental  defect,   obliquity,   or  perversion. 

Ousley  V.   Witheron,  7   C.  T).  448,   13   C.   C.  208. 
Edwards  v.  Davis,  30   l!uli.  2S3,   11   0.   D.   K.   87G. 


§85  METZLER'S    OHIO    TRIAL    EVIDENCE  104 

(e)  "Where  the  probate   court  has  found   and  established 

the  contents  of  a  lost,  spoliated,  or  destroyed  will,  in  a  future 

proceeding  to  contest  the  validity  of  such  will,  the  order  of 

probate  wiJl  be  prima  facie  evidence  of  the   due  attestation, 

execution,  validity,  and  contents  of  the  will;  and  the  burden 

of  proof  will  be  on  the  contestants  to  invalidate  such  will. 

Behrens  v.  Behrens,  47  0.  S.  323. 

See  also  Banning  v.  Banning,  12  0.  S.  437. 

(f)  In  the  trial  of  a  contest  to  set  aside  a  will  admitted  to 
probate  by  the  probate  court  as  a  lost  or  spoliated  will,  after 
the  probate  record  has  been  introduced  by  the  defendant,  the 
burden  remains  upon  the  plaintiff  to  establish  that  the  will  so 
admitted  to  probate  and  record  is  not  the  last  will  of  the  de- 
ceased ;  and  such  burden  does  not  shift  to  the  defendant  upon 
proof  by  the  plaintiff  tending  to  show  that  the  will  was, 
shortly  before  his  death,  in  the  custody  of  the  testator  and 
could  not  be  found  among  his  effects  shortly  after  his  decease. 

ITutson  V.  Hartley,  72  0.  S.  262. 
Behrens  v.   Behrens,  47   0.   S.  323. 
But  see  Cole  v.  McClure,  88  0.  S.  1. 

(g)  A  charge  from  which  the  jury  may  assume  that  the 
burden  of  proof  is  upon  the  defendants  in  a  will  contest  to 
show  affirmatively  the  testamentary  capacity  of  the  testator, 
is  improper.  The  charge  should  require  the  contestants  to 
show  affirmatively  lack  of  testamentary  capacity  before  the 
will  can  be  set  aside. 

West  V.  Knoppenberger,  16  C.  D.  16S,  4  C.  C.    (X.S.)    305. 

(h)  In  an  action  to  contest  a  will,  it  is  essential  that  the 
jury  be  instructed  that  the  evidence  of  the  contestants,  in 
order  to  warrant  the  setting  aside  of  the  will,  should  not  only 
outweififh  the  evidence  adduced  by  the  defendant,  but  also  the 
I)resumption  arising  from  the  order  admitting  the  will  to 
probate. 

Seal  V.  Gobol,  11  C.  C.    (X.S.)    433,  21  C.  D.  286. 

Hall  V.  Hall,  78  0.  S.  415. 

See  Stark  v.  Cress,  4  0.  A  pp.  92.  22  C.  C.    (X.S.)    88. 

Stride    V.   Ki-s.   :>  ().   App.   292,   2li   C.   C.    (X.S.)    456,  27  C.  D.  559. 

Fagan  v.  Welsh,   19  C.  C.    (N.S.)    177,  ISO. 

Cf.   Thayer,  Prelim.  Treat.,  p.   339. 


105  THE  DEGREE  OF  PROOF  §  86 

(i)  And  where  the  testimony  introduced  does  not  tend  to 
prove  the  issue  on  the  part  of  the  i)laintiffs  showing  incapac- 
ity of  the  decedent  to  make  a  will  at  the  time  the  will  was 
made,  it  is  not  error  for  the  court,  at  the  conclusion  of  the 
plaintiff's  testimony,  to  direct  the  jury  to  find  a  verdict  sus- 
taining the  will. 

Wagner  v.    Ziegler,    44   0.    ?.   59. 
Edwards  v.  Davis,  30  Bull.  283,   11    0.   D.  R.   876. 
Cf.  Beresford  v.  Stanley,  9  0.  D.   134,  6  X.  P.  38. 
Hall  V.  Hall,  15  0.  D.  167,  2  O.  L.  R.  328. 

86.  IN  NEGLIGENCE  CASES. 

(a)  A  party  performing  a  lawful  act  is  not  responsible 

for  injury  arising   therefrom,   unless   it   is   occasioned   by   his 

own  negligence,  carelessness,  or  wantonness.     The  burden  of 

proof  is  upon  the  party  claiming  that  the  injury  was  done,  to 

show  that  it  was  occasioned  by  negligence,   carelessness,   or 

wantonness ;  and  he  must  prove  the  reality  and  nature  of  the 

injur 

Titus  V.  Lewis,  33  0.  S.  304. 

Railway  v.  Powell.  22  C.  C.    (X.S.)    2S0. 

(b)  There  is  no  presumption  of  negligence  as  against 
either  party,  except  such  as  arises  upon  the  facts  proved.  In- 
deed, the  presumption  is  that  neither  party  was  guilty  of 
negligence,  and  such  presumption  must  prevail  until  overcome 
by  proof.  Each  party  starts  in  the  trial  with  the  presumption 
that  he  is  free  from  negligence;  and  each,  therefore,  primarily 
assumes  the  burden  of  proving  the  negligence  of  the  other. 

■Railroad  v.  Crawford.  24  0.  S.  631,  6. 

Schwcinfurth  v.  Railway  Co.,  60  0.  S.  215,  23. 

Toledo  Ry.  v.   Rippon,   8  C.   C.    (X.S.)    3.34,   IS  C.  D.  561. 

Cf.  Stevens  Co.  v.  Blum,  17  C.  C.    (N.S.)    115. 

(c)  However,  when  the  doctrine  of  res  ipsa  loquitur  ap- 
plies, the  negligent  act  makes  a  j)rima  facie  case  of  negligence 
against  the  defendant;  and  in  such  cases  tlie  burden  is  on 
him  to  rebut  the  prima  facie  case  made  against  him. 

Cinti.  Trac.  Co.  v.  Tlolzenknmp.  74  0.   S.  370. 
Citizens  Ry.  v.  Bell,  5  C.  C.    (X.S.)    .321,   16  C.  1).  601. 
Barnes  v.  Auto  Co.,  13  C.  C.    (X.S.)   571,  22  C.  D.  233. 


§  86  METZLER'S   OHIO   TRIAL   EVIDENCE  106 

(d)  It  is  the  general  rule  that  the  burden  of  proof  is 
upon  the  defendant  to  make  out  the  affirmative  defense  of 
contributory  negligence ;  and  it  is  error  to  require  the  plain- 
tiff to  prove  its  absence.  This  rule  applies  in  actions  for 
wrongful  death  as  well  as  other  negligence  cases. 

Railway  v.  Hart,  6  C.  D.  731,  10  C.  C.  411. 

Jackson  Co.  v.  Hathaway,  7   C.   C.    (N.S.)    242,   17  C.   D.   745. 

Brinkman  v.  Lumber  Co.,  16  C.  C.    (N.S.)    537. 

(e)  However,  when  the  circumstances  require  of  plaintiff 
the  exercise  of  due  care  to  avoid  the  injury,  and  his  own  testi- 
mony in  support  of  his  cause  of  action  raises  a  presumption  of 
contributory  negligence,  the  burden  rests  upon  the  plaintiff  to 
remove  that  presumption.  But  when,  in  such  case,  the  plain- 
tiff's testimony  does  not  disclose  any  want  of  due  care  on  his 
part,  the  burden  is  on  the  defendant  to  show  such  contribu- 
tory negligence  as  will  defeat  a  recovery. 

Eailroad  v.  Whitacre,  35  0.  S.  627. 
Railway  v.  Levy,  8  C.  C.    (N.S.)    353,   18  C.  D.  23. 
Railway  v.   Whidden,   13  C.   D.   S5,  2  C.   C.    (X.S.)    544. 
Cincinnati  v.  Frazer,  9  C.  D.  487,   18  C.  C.  50. 
Railway  v.  Cornwall,  14  C.  C.   (iST.S.)   209,  24  C.  D.  124. 
Railway  v.  Zepperlcin,  1  C.  C.  36,  1  C.  D.  22. 

(f)  When  the  case  is  such  as  requires  due  care  on  the 
part  of  the  plaintiff,  it  is  the  duty  of  the  court  to  determine 
whether  there  was  any  evidence  raising  the  presumption  of 
contributory  ne/gligence ;  and  if  his  evidence  raises  such  a 
presumption,  it  is  the  duty  of  the  court  to  instruct  the  jury 
that  the  burden  rests  upon  the  plaintiff  to  remove  such  pre- 
sumption and  show  that  he  was  exercising  ordinary  care  be- 
fore he  can  recover. 

Railway  Co.  v.  Ackworth,  6  C.  D.  622,  10  C.  C.  5S3. 
Railway  Co.  v.  Whidden,  13  C.  D.  So,  2  C.  C.    (X.S.)    544. 
Cincinnati  v.   Frazer,  9  C.  D.   487,   IS   C.   C.   50. 

(g")  A  charge  of  the  court  in  a  negligence  case  so  given 
to  the  jury  that  they  may  reasonably  regard  it  as  confining 
them,  upon  the  question  of  contributory  negligence,  to  the 
evidence  given  only  on  the  part  of  the  defendant,  is  mislead- 
ing and  erroneous. 

Robinson  v.  Gary,  28  0.  S.  241. 


107  THE  DEGREE  OF  PROOF  §  86 

(h)  In  a  ease  where  the  pleadings  and  evidence  require  a 
determination  as  to  whether  the  plaintiff  himself  exercised 
due  care,  a  charge  of  court  is  erroneous  which  directs  the 
jury  to  find  for  the  plaintiff  in  the  event  his  evidence  out- 
weighs that  of  the  defendant,  if  they  are  not  at  the  same 
time  told  that  before  weighing  the  evidence  for  the  plaintiff 
they  should  separate  out,  without  regard  to  its  source,  such 
evidence  as  tends  to  prove  the  essential  facts  of  plaintiff's 
case  from  that  which  tends  otherwise. 

Traction  Co.  v.  Ruthman,  22  C.  D.  353,  13  C.  C.   (N.S.)    161. 

(i)  The  action  of  negligence  may  be  maintained  if,  upon 
the  whole  evidence,  the  negligence  of  the  defendant  is  estab- 
lished by  a  preponderance  of  evidence,  and  contributory  negli- 
gence of  the  plaintiff  is  not  shown  by  the  same  weight  of 
evidence. 

Schweinfurth  v.  Railway,  60  0.  S.  215. 

Toledo  Ry.  v.  Rippon,  8  C.   C.    (N.S.)    3.34,   18  C.   D.   561. 

Peat  V.  Norwalk,  5  C.  C.   (N.S.)   614,  16  C.  D.   161. 

See  Traction  Co.  v.  Murhpy,  6  0.  App.  I,  28  O.  C.  A.  316,  30  C.  D.  82. 

(j)  It  is  not  error  to  charge  as  to  the  burden  of  proof  of 
contributory  negligence  when  made  an  issue  by  the  pleadings, 
even  though  the  evidence  tends  to  prove  that  the  injury  was 
due  AvhoUy  to  plaintiff's  negligence.  And  where  such  issue 
is  not  raised  by  the  pleadings,  but  is  raised  by  the  evidence, 
the  burden  of  proof  is  determined  by  the  same  rules  as  if 
raised  by  the  pleadings. 

Eiipineoring  Co.  v.   Colochia,   18  C.   C.    (XS.)    316. 
Coal  Co.  V.  McFadden,  00  0.  S.   183. 

(k)  In  a  negligence  case,  it  is  error  to  charge  the  jury 
that  the  plaintiff  may  recover  Avhen  he  shows  by  a  preponder- 
ance of  the  evidence  that  the  defendant's  negligence  was  the 
probable  cause  of  the  injury.  The  probabilities  arising  upon 
the  evidence  might  warrant  the  jury  in  finding  that  the  alleged 
negligence  caused  the  injury:  bnt  to  find  that  it  probably 
caused  the  injury  would  not  be  sufTicient. 

Castings  Co.  v.  Lnscomb,  6  C.  D.  313.  10  C.  C.  673. 


§  88  METZLER'S   OHIO   TRIAL    EVIDENCE  108 

87.  IN  ATTACHMENT. 

(a)  The  ground  for  an  attachment  stated  in  the  affidavit, 
if  denied  by  the  defendant,  must  be  sustained  by  the  plaintiff 
to  the  satisfaction  of  the  court.  By  the  denial,  the  burden  of 
proof  is  thrown  upon  the  plaintiff. 

Coston  V.  Paige,  9  0.  S.  397. 

Seville   v.   Wagner,   46   0.   S.    52. 

Bradley  v.  Wacker,  7  C.  D.  565,  13  C.   C.  530. 

Cartmell  v.  Wurlitzer,  18  0.  D.  387,  5  N.  P.    (N.S.)    604. 

(b)  Where,  in  an  action  in  attachment,  an  affidavit  by  the 

defendant   in   support   of   a    motion    to    discharge    denies    the 

truth  of  the  allegation  contained  in  the  affidavit  upon  which 

the  attachment  was  issued,  the  burden  is  upon  the  plaintiff  to 

show  by  a  preponderance  of  the  evidence  that  his  allegation 

in  that  behalf  is  true. 

Young  V.  Clark,  13  C.  C.   (N.S.)   284,  22  C.  D.  374. 
Willinger  v.  Bramsc-he,  3   C.   1).  731,   7   C.   C.  208. 
But  see  Lyon  v.  Pbares,  4  0.  L.  Pv.  600,  17  0.  D.  792. 

(c)  "Where  the   averment  in   an   affidavit   for   attachment 

before  a  justice  of  the  peace  that  the  property  about  to  be 

attached   is  not   exempt   from   execution   is   traversed   by   the 

affidavit    of   defendant,   and   it   is   shown   circumstantially   by 

such  affidavit  that  the  property  is  exempt,  the  burden  is  on 

the  plaintiff  to  maintain  the  truth  of  the  statement  by  other 

evidence;  and  where  no  such   additional   evidence  is   offered, 

the   attachment   should   be   discharged.      But    the    burden    of 

showing  that   a  particular  piece   of   property,   a   part   of   the 

property   attached,   .should   be   discharged,   is  upon  the   party 

applying. 

Kirk  V.    Stevenson,   59   0.   S.   556. 

Bank  v.  Nash,  1   Handy   153,   12   0.  D.  P.   75. 

88.  IN  INJUNCTION. 

(a)  The  burden  of  establishing  a  right  to  a  perpetual  in- 
junction claimed  by  a  party  to  an  action  is  upon  .such  party. 
A  court  will  grant  a  perpetual  injunction  only  when  a  party 
shows  a  clear  right  thereto. 

Spangler  v.   Cleveland,   43   0.   S.   526. 


109  THE  DEGREE  OF  PROOF  §  89 

(b)  "Where  the  essential  statements  of  the  petition  on 
Mhich  a  temporary  injuHction  ^vas  obtained,  are  denied  by  the 
answer,  and  a  motion"  is  made  to  dissolve  the  injunction,  the 
burden  of  proof  to  maintain  such  injunction  is  on  the  plaintiff. 

Railway  v.  Hamilton,  3  C.  C.  4.)5.  2  C.  D.  250. 

(c)  But  on  a  motion  to  dissolve  a  preliminary  injunction 
on  the  ground  that  the  allegations  of  the  petition  are  untrue. 
the  burden  is  on  the  defendant  to  j)rove  thai  iacr ;  but  such 
full  and  positive  proof  is  not  requisite  as  would  be  necessary 
upon  a  final  hearing  of  the  case. 

Kuhn  V.  Spice  Co.,  8  X.  P.  686,  10  0.  D.  292. 

(d)  Where  a  party  seeks  to  enjoin  the  collection  of  an 
assessment  by  a  city  council  on  the  ground  that  the  improve- 
ment was  not  recommended  by  the  board  of  city  improve- 
ments, he  must  show  such  fact  by  averment  and  proof. 

Bolton  V.  Cleveland,  35  0.  ?.  310. 
Cincinnati  v.  Polster,  96  O.  S.   155. 

(e)  In  an  action  to  enjoin  an  assessment  levied  by  a  city 
council  on  the  ground  that  the  procedure  was  irregular,  or 
that  the  assessments  are  excessive,  or  that  a  statutory  require- 
ment has  been  omitted,  the  plaintiff  has  the  burden  of  estab- 
lishing such  fact  by  a  preponderance  of  evidence.  It  is  not 
incumbent  upon  the  city  to  show  affirmatively  the  regularity 
of  the  proceeding,  nor  the  fairness  of  the  assessments. 

Westenhaver  v.  novtville,  8  C.  C.    (X.^.)    284,  18  C.  D.   357. 

Prentice  v.  T<.lodu,   11   C.  C.    (X.S.)    2!)9,  20  C.  D.   568. 

Close  V.  Parker,  11   C.  C.    (X.S.)    85.  20  C.  D.  384. 

Raymond  v.  Trustees,  7  O.  App.  56,  28  O.  C.  A.  129,  29  C.  D.  242. 

89.  IN  SPECIAL  PROCEEDINGS. 

(a)  Tt  is  the  general  rule  that  on  applications  in  special 
proceedings,  the  burden  of  proof  is  on  the  one  ai)plying.  So 
on  application  for  bail  by  one  charged  with  murder  in  the 
first  degree,  the  burden  is  on  the  applicant  to  show  that  the 
proof  against  him  is  not  evident,  nor  the  presumption  of  guilt 

strong. 

State  V.  Woolard,  12  X.  P.  (X.S.)  395,  22  O.  D.  652. 


§  89  METZLERS    OHIO    TRIAL    EVIDENCE  110 

(b)  In  a  i)roceeding  to  recover  property  of  a  decedent, 
the  burden  of  proof  is  upon  the  applicant  to  make  proof  by  a 
preponderance  of  the  evidence.  So  also,  a  signer  that  asks  to 
have  his  name  stricken  from  a  petition  to  prohibit  the  sale  of 
intoxicating  liquors  in  a  residence  district,  on  the  ground  of 
fraud  or  misrepresentation,  must  establish  such  fact  by  a 
preponderance  of  evidence. 

Leonard  v.  State,  ex  rel.,  3  O.  App.  31.3,  20  C.  C.   (X.S.)   340. 
In  re  Jones  Law  Petition,   12  X.   P.    (X..S.)    44'.). 

(c)  In  a  ditch  proceeding,  the  burden  of  proof  is  on  the 
petitioners  to  show  that  the  proposed  ditch  will  be  conducive 
to  the  public  health,  convenience,  and  welfare.  And  upon  an 
appeal  from  the  decision  of  the  county  commissioners  to  the 
probate  court  by  the  owners  of  property  to  be  taken  for  the 
ditch,  the  burden  continues  to  be  on  the  petitioners.  The  fact 
that  one  party  is  made  plaintiff  and  another  defendant  in  a 
case  by  virtue  of  the  statute  has  nothing  to  do  with  the  ques- 
tion of  burden  of  proof;  in  other  words,  the  burden  of  proof 
is  not  governed  by  the  style  of  the  case. 

Commissioners  v.  Whisler,  82  0.  S.  234.  6. 

Sever  v.  Commissioners,  21  0.  D.  670,   13   N.  P.    (N.S.)    585,  592. 

Emig  V.  Com'rs.,  1  X.  P.  320,  3  0.  D.   302. 

(d)  In  a  proceeding  by  mandamus  to  compel  an  officer  to 

do  an  act  which,  it  is  claimed,  the  law  enjoins  on  him  as  a 

duty,  the  existence  of  all  the  facts  necessary  to  put  him  in 

default  must  be  shown.    But  when  the  defendant  justifies,  the 

burden  is  on  him  to  show  justification ;  and  he  is  entitled  to 

the  open  and  close. 

Cinti.  College  v.  LaRue,  22  0.  S.  469. 

State  V.  Cappeller,  39  0.  S.   455. 

Case  V.  Wrcsler,  4  0.  S.  561,  2. 

State  V.  Yanderbilt,  37  0.   S.  590,  631. 

See   State,   ex   rel.,  v.   Fosdick,   15   N.   P.    (X.S.)    630. 

(e)  Justification  is  also  a  defense  in  a  proceeding  before  the 
public  utilities  commission,  when  the  applicants  seek  to  com- 
pel a  railroad  to  continue  an  interurban  service  which  was 
voluntarily  established  and  long  maintained,  and  the  railway 
company  justifies  its  plan  to  discontinue  such  service. 

Railwav  v.  Public  Utilities  Com'n.,  92  0.  S.  9. 


CHAPTER  VII. 

COURT  AND  JURY. 

90.  Law   and    fact. 

91.  Credibility    ol'    witne.-^ses. 
9"2.  Classifying   witnesses. 

93.  Weight  of  evidence. 

94.  Negative   testimony. 
9o.  Statement  of   issues. 

96.  Two  issues. 

97.  Summing   up   the  evidence. 

98.  Facts  considered   without  evidence. 

99.  Xonsuit — Scintilla    rule. 

100.  Xonsuit — Motion   by   one   party. 

101.  Nonsuit — Motion  by  each  party. 

102.  Cases    for    the   jury. 

103.  Conclusive  proof. 

104.  In   negligence   cases. 

105.  In  will   contests. 

90.  LAW  AND  FACT. 

(a)  A  trial  is  a  judicial  examination  of  the  i.ssues,  whether 
of  law  or  of  fact,  in  an  action  or  proceeding.  Issues  arise  on 
the  pleadings  where  a  fact  or  conclusion  of  law  is  maintained 
by  one  party  and  controverted  by  the  other.  They  are  of  two 
kinds:     (1)  Issues  of  law;  and  (2)  Issues  of  fact. 

Section   11376-7,  General  Code. 

(b)  In  all  jury  trials,  it  is  the  peculiar  province  of  the 

jury  to  determine  the  questions  of  fact,  and  that  of  the  court 

to  determine  the  questions  of  law  presented  and  to  instruct 

the  jury  thereon.     The  judges  of  courts  are  selected  with   a 

view  to  their  knowledge  of  the  law,   and  the   jurors  with   a 

view  to  their  practical  good  sense  on  matters  of  fact. 

Robhins  V.  State,  8  0.  S.  131,  167. 
Adams  v.  State,  29  0.  S.  412. 

(c)  In  the  trial  of  criminal  causes  as  well  as  civil  causes, 
it  is  the  duty  of  the  jury  to  receive  the  law  as  dotcrminod  hy 

111 


§  90  METZLER'J     OHIO    TRIAL    EVIDENCE  112 

the  court ;  and  no  juror  can  rightfully  disregard  the  law   as 
declared  in  the  instructions  of  the  court  to  the  jury. 

Robbins  v.  State,   8   0.   S.    131. 

JMontgomery  v.   State,   11    Oh.   424.   427. 

Contra,  State  v.  Turner,  Wright  20. 

(d)  The  reading  of  law-books  and  decisions  as  a  part  of 
the  argument  with  a  view  of  showing  the  jury  what  the  law 
is,  may  be  disallowed;  for  the  jury  is  not  the  judge  of  the  law, 
even  in  criminal  cases.  However,  it  is  not  per  se  prejudicial 
error. 

McGuire    v.    State,    3    C.    C.    5ol,    2    C.    D.    318. 
Goodman   v.  Lynch,   17  C.  C.    (N.S.)    31. 

(e)  An  interrogatory  to  a  jury  should  call  for  a  special 
finding  upon  a  question  of  fact;  and  one  that  calls  for  a  con- 
clusion of  law  and  also  a  finding  of  fact  should  not  be  sub- 
mitted. When  submitting  an  interrogatory,  it  is  not  proper 
for  the   court   to   explain  to  the   jury  the   legal   effect   of   an 

ansAver  thereto. 

Steel  Co.  V.   Tanakis,  n3  0.   S.   300,  303. 
Walsh  V.  Thomas,  91  0.  S.  210. 

(f)  And  the  trial-judge  is  not  authorized  to  consider  thr 
facts  in  evidence,  even  when  disposing  of  a  motion  for  judg 
ment    notwithstanding     the     verdict,     or     when     determining 
whether  there  is  an  irreconcilable  conflict  between  a  general 

and  a  special  verdict. 

Eailroad  v.  Xobil.  85  O.  S.  175. 

McCoy  V.  Jones,  f.l   0.   S.  110. 

Mercer   Co.   v.    Deitscli,   04  0.   S.    1. 

(g)  In  mixed  questions  of  law  and  fact,  such  as  questions 
of  reasonableness,  probable  cause,  and  due  diligence,  the  ques- 
tion is  one  of  law  for  the  court  when  the  material  facts  arc 
ascertained  or  admitted,  and  it  can  not  properly  be  submitted 
to  the  jury  as  a  question  of  fact.  But  where  the  facts  are 
contested,  it  is  for  the  decision  of  the  jury  under  instructions 
by  the  court  upon  the  law  arising  on  the  various  hypothetical 
statements  of  facts  claimed  to  be  proved. 

Bassenhorst  v.  Wilby,  45  0.  S.  333. 
Kroll  V.   Close,  82  6.   S.   190. 
Ash  V.  Marlow,  20  Oh.  119. 
Walker   v.   Stetson,    14   0.    S.   89. 
Davis  V.   Herrickj  6   Oh.   55. 


113  COURT    AND     JURY  §  90 

(h)  It  is  the  general  rule  in  jury  eases  that  the  tendency 
of  evidential  facts  is  a  question  for  the  court ;  but  the  Aveight, 
sufficiency,  and  effect  of  such  facts  is  especially  the  province 
of  the  jury.  As  to  ultimate  facts,  the  general  rule  is  that  the 
finding  of  such  facts  is  the  i)rovince  of  the  jury;  to  apply  the 
law  to  such  facts  is  the  province  of  the  court. 

Tlollenbeck  v.  ^rf^rnlion.  2S  0.   S.   1. 

Xewnam  v.   Cincinnati,   IS  Oil.   323. 

Beresford  v.  Stanley.  G  X.  P.  38.  0  0.  D.   134,  13S. 

State  V.  Robinson,  S3  0.  S.   13G,  143. 

(i)  "Whether  the  evidence  is  material  or  tends  to  establish 
a  fact  is  a  question  of  law ;  whether  it  does  establish  it,  is  a 
question  of  fact.  So  where  the  trial-court  stated  to  the  jury 
that  there  was  testimony  in  the  case  tending  to  support  or 
corroborate  a  witness,  but  its  weight  was  left  to  the  jury,  the 
court  did  not  err. 

Eerry  v.   State,   31   0.   S.   219,   230. 

Barnes  v.  State,  15  C.  C.   14,  8   C.  J).   153. 

(j)  The  questions  relating  to  the  competency  and  admis- 
sibility of  the  evidence  are  matters  properly  within  the  prov- 
ince of  the  court.  By  its  control  over  the  admissibility  of 
evidence,  the  court  is  required  to  exclude  all  that  is  incom- 
petent, and  the  jury  are  relied  upon  to  ascertain  the  truth 
from  the  evidence  which  the  law  submits  to  them  for  their 
consideration. 

Mead  v.  McGra\v,  19   0.   S.  55,   G2. 

(k)  The  general  rule  is  that  all  matters  preliminary  to  the 
admission  of  evidence  should  be  determined  by  the  court. 
But  when  the  court  is  in  doubt  about  the  matter,  it  may  sub- 
mit the  questions  arising  upon  the  jjroof  to  the  jury  under 
instructions  to  make  no  use  of  the  evidence,  unless  satisfied  by 
the  preliminary  proof  that  it  is  competent. 

Biirdge    v.    State,    53    0.    S.   512,    517. 

(1)  "W'here  a  question  properly  triable  by  the  court  is 
submitted  to  the  jury,  there  is  no  error  to  the  prejudice  of  the 
complaining  party,  as  he  had  two  tribunals  instead  of  one 
Avhen  the  court  passed  upon  the  question  by  overruling  the 
motion  for  a  new  trial. 

Insurance  Co.  v.  Romeis,  8  C.  D.  633,  15   C.  C.  097. 


§91  METZLER'S   OHIO    TRIAL    EVIDENCE  114 

(m)  And  where  an  instruction  as  to  the  law,  which  is 
open  to  criticism,  has  been  given  by  a  trial-court  to  a  jury, 
and  the  record  discloses  that  the  instruction  could  not  have 
resulted  in  prejudice  to  the  complaining  party,  it  is  error  for 
a  reviewing  court  to  reverse  the  judgment  of  the  trial-court 
upon  that  ground. 

Ha<as    V.    Kundtz,    04    O.    R.    238. 

91.  CREDIBILITY  OF  WITNESSES. 

(a)  In  the  administration  of  justice  according  to  the 
course  of  the  common  law,  it  is  a  fundamental  rule  that  the 
passing  upon  the  credibility  of  witnesses  is  exclusively  within 
the  province  of  the  jury. 

Mead  v.  McOraw.   10  0.   S.   55,   62. 

(b)  If  the  jury  believes  that  a  witness  has  knowingly 
testified  falsely  to  a  material  fact,  they  are  at  liberty  to  dis- 
card his  testimony  altogether.  The  credibility  of  witnesses  is 
a  subject  for  the  consideration  and  decision  of  the  jury;  and 
they  should  give  the  testimony  of  each  witness  such  weight  as 
they  think  it  deserves. 

^Tead  v.  McOraw.  10   0.   S.   55. 
Dye   V.    Scott,    35   0.   S.    104. 

(c)  The  maxim,  "falsus  in  uno,  falsus  in  omnibus,"  Is  to 
be  applied  by  the  jury  according  to  their  own  judgment  for 
the  ascertainment  of  the  truth  ;  it  is  not  a  rule  of  law  in  virtue 
of  which  the  judge  may  withdraw  the  evidence  from  their 
consideration,  or  direct  them  to  disregard  it  altogether.  It  is 
error  to  charge  the  jury  that  if  the  general  character  of  a 
witness  is  successfully  impeached,  they  are  bound  to  disregard 
the  whole  of  his  testimony. 

Mead  v.  McGraw,  10  0.  S.  55. 
Sharp  V.  State,  16  0.  S.  218. 
Smiley  v.  Dewey,   17   Oh.    156,   160. 

(d)  And  it  is  not  true  in  law  that  a  witness  must  be  cred- 
ited unless  directly  impeached  or  contradicted  by  other  wit- 
nesses; his  manner,  the  improbability  of  his  story,  and  his 
self-contradiction  in  the  several  parts  of  his  narrative  may 
justify  the  jury  in  wholly  rejecting  his  testimony,  though  he 


11')  COURT     AND     JURY  §91 

is  not   attacked    in   his    reputation   or   contradicted    by    other 
v.itnesses. 

French  v.  Millard,  2  0.  S.  44. 

(e)  Statements  made  by  a  trial-judge  during  the  progress 
of  a  trial  and  within  the  hearing  of  the  jury  are  of  the  same 
effect  as  though  embodied  in  the  charge  to  the  jury.  And 
where  remarks  indicate  an  opinion  on  the  part  of  the  judge 
as  to  the  credibility  of  witnesses  or  as  to  the  facts  of  the  case, 
prejudicial  error  results. 

Ilazen  v.  Morrison,   14  C.  C.    (X.S.)    483,  2.*?  C.  D.  512. 

(f)  Where  the  trial-judge  in  the  hearing  of  the  jury  im- 
putes improper  motives  to  the  defendant's  witnesses  and  dis- 
parages their  testimony  upon  a  material  matter,  it  will  be 
presumed,  in  the  absence  of  any  showing  to  the  contrary,  that 
the  defendant  was  thereby  prejudiced  and  deprived  of  a  fair 
and  impartial  trial. 

Rose  V.  State,  7  C.  D.  226,  13  C.  C.  342. 

(g)  Kemarks  by  the  trial-judge  in  the  presence  and  hear- 
ing of  the  jury  as  to  the  inaccuracy  of  reports  of  testimony 
before  the  coroner,  when  such  a  report  is  about  to  be  offered 
in  evidence,  is  prejudicial  and  ground  for  a  new  trial. 

Railway  v.  Burroughs,  6  0.  D.  527.  5  X.  P.   12. 

(h)  Where  the  testimony  of  two  witnesses  is  directly  con- 
tradictory, it  is  for  the  jury  to  determine  the  credibility  of 
each ;  and  their  finding  should  not  be  disturbed  by  a  review- 
ing court.  But  it  is  not  error  for  the  court  in  a  proper  case 
to  say  to  the  jury  that  as  to  a  certain  fact  the  testimony  of 
one  witness  is  contradicted  by  others,  if  the  credibility  is  left 
to  the  jury. 

.\ndrews  v.  Watson.  12  C.  T).  602. 

Jaspers  v.   Mallon,   11    Uull.   106,  9   0.   D.  R.  184. 

(i)  A  charge  to  the  jury  that  they  have  a  right  to  accept 
or  reject  part  or  all  of  the  testimony  of  a  witness,  and  give 
credit  to  those  witnesses  who  in  their  opinion  are  entitled  to 
credit,  is  not  improper.  But  it  is  error  to  charge  the  jury 
that  they  have  the  right   to  disregard  or  rejisct  any  evidence 


§92  METZLER'S    OHIO    TRIAL    EVIDENCE  116 

they  choose,  and  consider  only  that  which  appeals  to  their 
sense  of  justice  and  fairness. 

Buttemiller  v.  Schniid,  4  0.  App.  100,  26  C.  D.  50,  25  C.  C.  (N.S.) 
201,  203. 

Chambers  v.   :\Ieadc,   15   C.   C.    (N.S.)    352. 

Railway  v.  Pritz,  00  0.  S.  419. 

Fox  V.  Jewell,  91  0.  S.  409. 

(j)  It  is  also  error  to  charge  the  jury  not  to  be  influenced 
by  anything  but  a  desire  to  do  what  is  right,  or  that  they  are 
not  absolutely  bound  by  the  testimony  of  witnesses.  Either 
might  be  understood  to  mean  that  the  jury  is  not  bound  by 
the  facts  of  the  case. 

Fugman  v.  Trostler,  24  C.  C.    (N.S.)    521. 

Pierce  v.  Andrews,  7  C.  D.   105,   13  C.  C.  513,  517. 

92.  CLASSIFYING  WITNESSES. 

(a)  It  is  not  the  province  of  the  court  to  classify  wit- 
nesses, and  give  to  the  jury  what  the  experience  of  the  courts 
may  be  in  respect  to  such  a  class ;  but  their  credibility  should 
be  left  to  the  jury  under  all  the  competent  facts  and  circum- 
stances of  the  case  before  it. 

State  V.  Tuttle,  G7  0.  S.  440. 

(b)  It  is  error  to  charge  that  the  testimony  of  abandoned 
women  should  be  scanned  with  caution  and  viewed  with  sus- 
picion ;  and  that  their  conduct  is  often  incomprehensible  when 
tested  by  the  standards  applied  to  the  generality  of  mankind ; 
and  that  the  jury  should  be  cautious  in  relying  upon  their 
testimony. 

State  V.  Tuttle.  67  0.  S.  440. 

(c)  The  testimony  of  detectives  is  governed  by  the  same 
rules  and  entitled  to  the  same  credence  as  that  of  other  wit- 
nesses under  like  conditions;  and  this  is  particularly  true 
where  detectives  testify  whose  compensation  is  not  dependent 
upon  the  conviction  of  the  accused.  A  request  to  charge  that 
their  testimony  is  to  be  viewed  with  caution  is  properly 
refused. 

State  V.  ninkelman.  13  C.  C.    (N.S.)    ?21,  22  C.  D.  1. 

Adams  v.  State.   14  0.  D.  257. 

Cf.   Carey  v.   State   70  0.  S.    121,   126. 

Hirsch  v.  Cincinnati,  21   C.   C.    (N.S.)    561. 


117  COURT     AND     JURY  §93 

(d)  A  charge  that  the  testimony  of  relatives  must  be 
taken  with  allowance  is  not  error  when  it  is  immediately 
added  that  if  such  testimony  is  of  such  a  nature  as  to  carry 
conviction,  it  is  entitled  to  as  much  weight  as  that  of  any 
other  witness. 

Crawford  v.  :Nrerrell  5  0.  App.  146.  25  C.  C.   (X.S.)   537,  27  C.  D.  104. 

(e)  However,  accomplices  are  an  exception  to  the  rule.  It 
is  necessary  for  the  trial-court  in  a  criuiinal  case  not  only  to 
instruct  the  jury  not  to  convict  upon  the  uncorroborated  testi- 
mony of  an  accomplice,  but  also  to  aid  them  in  determining 
whether  there  is  corroboration.  The  court  should  not  charge 
that  the  testimony  of  an  accomplice  is  corroborated;  whether 
or  not  it  is  corroborated  is  a  question  for  the  jury. 

State  V.   Robinson.  S3   0    S.   136,   143. 
Noland  v.   State,    10   Oli.    131. 
Cf.  Allen  V.  State,   10  0.   S.   2S7. 
State  V.  McCoy,  52  0.  S.   157. 

(f)  In  instructing  the  jury  that  the  evidence  of  an  accom- 
plice should  be  cautiously  received  and  closely  scrutinized,  it 
is  not  error  for  the  court,  in  introducing  this  caution,  to  say 
that  the  witness  admits  his  complicity  in  the  crime. 

Whiting  V.  State,  4S  0    S.  220. 

93.  WEIGHT  OF  EVIDENCE. 

(a)  The  weight  and  the  sufficiency  of  the  evidence  are 
matters  to  be  determined  by  the  jury  from  tlie  quality  of  the 
evidence.  Both  the  credibility  of  witnesses  and  their  number 
should  be  considered.  The  jury  is  not  required  to  decide  for 
the  party  having  the  greater  number  of  witnesses;  it  may  be- 
lieve the  fewer  witnesses  on  the  other  side. 

TTiimmol  v.  State,  17  0.  S.  628,  633. 

KettiiMan   v.   M.tzger,  3  C.   C.    (X.S.)    224,   13  C.  D.   61. 

Hallway  v.   Pifer,  20  C.  C.    (N.S.)    435. 

Railroad   v.   Burkham,  7   0.  Api>.  434.  27   0.  C.  A.   36().  29  C.   I).    17(1. 

(b)  "Wlien  evidence  is  offered  to  trace  stolen  property  but 
one  or  more  links  are  wanting,  it  is  jjroper  for  the  court  to 
refuse  to  instruct  the  jury  thnt  the  proof  is  insufficient  and 
must  be  disregarded.  The  court  should  not  give  its  opinion 
on  the  weight  of  evidence. 

Ilummol  V.  State,  17  0.  S.  62S,  633. 


^93  METZLER'S   OHIO   TRIAL    EVIDENCE  118 

(c)  And  a  remark  in  the  charge  to  the  jury  that  the  testi- 
mony of  the  plaintiff  is  not  very  clear  and  specific  is  errone- 
ous for  the  double  reason  that  it  is  a  comment  upon  the  weight 
of  the  testimony,  and  also  an  intimation  of  opinion  on  the 
part  of  the  court  that  there  may  have  been  some  concealment 
by  the  plaintiff. 

Dickson  v.  Kilgonr,  1  X.  P.    (X.S.)    17.  14  0.  T>.  59. 

(d)  Where  a  fact  material  to  the  issue,  concerning  the 
existence  of  which  there  is  a  conflict  in  the  evidence,  is  as- 
sumed by  the  court  in  the  charge  to  the  jury  to  be  fully 
established,  the  province  of  the  jury  is  invaded,  and  preju- 
dicial error  is  shown. 

nine  V.  State,   4.3  0.   S.   .3.32. 

Weybright   v.   Fleming.  40  O.   S.  .52. 

Weller  v.  State,  10  C.  D.  .381,  19  C.  C.  166. 

(e)  A  special  charge  to  the  jury  which  is  based  on  the 
assumption  that  a  material  fact  exists  in  the  case,  but  which 
fact  is  in  dispute  between  the  parties,  is  properly  refused. 
And  it  is  error  to  assume  the  existence  of  a  fact,  and,  on  that 
assumption,  take  from  the  jury  evidence  which  otherwise 
would  be  competent. 

Railway  v.  Rigby,  G9  0.  S.   184. 
~      Armstrong   v.   Traction   Co..   10  X.    P.    (X.S.|    .-)81,   23  0.   D.  21.5. 
Railway   v.   Dooley,   13  C.  C.    (N.S.)    22.5,  22   C.  D.   6.5.5. 
Hastings  v.    Allen,    14   Oh.   58. 

(f)  The    court   should   refuse   to    give    instructions   which 

require  the  court  to  assume  or  imply  the  existence  of  material 

facts   in   issue   in   the   case,   although    such   facts   are   clearly 

proved  by  the  evidence  submitted   to  the  jury.     And  when 

there  is  no  uncertainty  in  the  proof  of  a  fact,  it  is  error  to 

assume  uncertainty. 

Railway  v.  Snyder.  24  0.  S.  670. 
Walker  v.  Devlin,  2  0.  S.  .5!>3. 

(g)  It  is  error  to  charge  the  jury  that  any  given  fact  in 
issue  has  been  proved,  even  though  the  oral  testimony  in  sup- 


119  COURT     AND     JURY  §94 

port  of  that  fact  is  -wholly  uncontradicted,  unless  it  amounts 
to  an  admission  by  the  opposite  party. 

Steamship  Co.  v.  Chanfordi,  22  C.  C.    (N.S.)    310. 

Cf.   Weller  v.   State,   10  C.   D.   3S1,   19  C.   C.   1C6. 

Miller  v.  Southworth,  10  C.  C.  572,  5  C.  D.  lOl. 

Cf.   Penquito   v.   Lawrence,    11    0.    S.    274. 

(h)  "Where  an  issue  has  been  made  by  the  pleadings  ■which 
has  not  been  waived,  and  evidence  on  the  subject,  but  not 
conclusive  in  law,  has  been  submitted,  the  failure  of  a  party 
to  contradict  the  evidence  produced  is  not  an  admission  of  the 
fact;  for  the  jury  may  not  believe  the  evidence.  And  a  charge- 
to  the  jury  that  such  fact  is  uncontroverted  and  has  been, 
established  is  prejudicial  error. 

Toledo  V.  Meinert,   15   C.   C.    (X.S.)    545,  556. 
French  v.   IMillard,   2   0.   S.   44. 
Nobil   V.  Railroad,   16   C.  C    (N.S.)    335. 
Kirkbride  v.  Railway,  22  C.  C.   (N.S.)   495,  501. 

(i)  In  an  action  for  board,  lodging,  and  washing,  it  is 
therefore  error  to  charge  that  there  is  one  witness  who  testi- 
fies as  to  value  that  they  are  worth  four  dollars  a  week;  that, 
in  the  absence  of  other  testimony,  you  are  bound  to  consider 
four  dollars  a  week  as  the  value  of  the  services. 

Wilson   V.   Brown,    12   C.    D.    719. 

(j)  It  is  an  invasion  of  the  province  of  the  jury  for  the 
court  to  recite  to  the  jury  the  substance  of  the  evidence  for 
the  state  and  give  the  details  of  the  circumstances  surround- 
ing the  commission  of  the  alleged  offense,  and  instruct  them 
that  those  facts  are  shown  by  the  uncontradicted  evidence  in 
the  case.  Where  a  defendant  enters  a  plea  of  not  guilty,  he 
puts  in  issue  all  the  material  facts,  including  the  corpus 
delicti. 

Morgan  v.  State,  48  O.  S.  371. 

Preniack  v.  State,  11   C.  C.    (N.S.)    364,  20  C.  D.  828. 

94.  NEGATIVE  TESTIMONY. 

(a)  The  general  rule  is  that  positive  testimony  is  of 
greater  Aveight  than  negative  testimony.  But  the  rule  should 
never  come  in  conflict  witli  the  general  rule  that  llie  weight 
of  the  evidence  sliould  ))c  left  to  Ilic  jiiv;-.     The   (luestion   of 


§94  METZLER'S    OHIO    TRIAL    EVIDENCE  120 

the  weight  to  be  given  to  negative  testimony  often  arises  in 
railroad  and  other  accident  cases  where  it  is  claimed  that 
signals  were  not  given.  In  such  cases,  the  question  is  purely 
for  the  jury. 

Railway   v.  Richerson.    1!)  C.  C.   3S.-).   10  C.  D.  32i;,  ?/.V). 

Railway  v.  Rohnor,  6  C.  D.   706,   9   C.   C.  702. 

(b)  Where  a  witness  testifies  simply  that  he  did  not  hear 
a  signal  given,  and  the  fact  is  that  at  the  time  he  was  not 
giving  particular  attention  to  the  subject  and  can  go  no  fur- 
ther than  to  say  that  he  did  not  hear  it,  that  is  negative 
testimony. 

Railway  v.  Richerson,  19  C.  C.  3S5,  10  C.  D.  326,  329. 
Cf.   Boyd   V.   Sell,   Tappan   43. 

(c)  The  testimony  of  a  witness  who  was  near  enough  to 

hear  and  see,  that  he  was  paying  particular  attention  and  that 

lie  looked  and  listened  for  a  train,  and  that  the  bell  was  not 

rung  nor  the  whistle  sounded,  is  not  negative  testimony ;  it  is 

as  much  positive  or  affirmative  testimony  as  that  of  a  witness 

who  testifies  that  a  signal  was  given. 

Railway  v.  Richerson,   19  C.  C.  3So,   10  C.  D.  32ii. 
Railroad  v.  Scliade,  15  C.  C.  424,  8  C.  D.  316. 

(d)  Where  the  testimony  was  of  this  character,  the  court 
properly  refused  to  charge  the  jury  that  where  all  the  wit- 
nesses are  unimpeached,  they  must  give  the  greater  weight  to 
the  testimony  of  those  who  speak  positively. 

Railway   v.  Richerson.    19  C.  C.  3So,   10  C.  D.  326. 

(e)  The  following  form  of  charge  was  approved:  "If  you 
find  the  witnesses  of  equal  credibility  and  had  equal  oppor- 
tunities to  hear,  then  I  charge  you  that  the  affirmative  testi- 
mony of  the  witness  who  says  that  he  heard  the  gong  sounded 
is  of  greater  value  than  the  testimony  of  other  witnesses." 

Traction  Co.   v.   Harrison.  24   C.  C.    (N.S.)    1. 

(f)  Negative  testimony  on  questions  of  notoriety  is  en- 
titled to  full  weight,  provided  the  opposing  witnesses  have 
equal  advantages  of  information.  And  affidavits  on  a  motion 
for  change  of  venue  to  show  prejudice  against  the  accused  do 
]-.ot  preponderate  over  those  showing  its  absence  on  the  theory 


y?!  COURT     AND     JURY  §95 

that  the  hitter  are  negative;  for  as  far  as  based  on  fact,  both, 
are  equally  positive. 

]\IcArthur  v.  Phoebus,  2  Oh.  415,  426. 

Townsend  v.   State,  25   C.  D.  408,  17   C.  C.    (X.S.)    380,  381. 

05.  STATEMENT  OF  ISSUES. 

(a)  In  submitting  a  case  to  the  jury,  it  is  the  duty  of  the 

court  to  separate  and  definitely  state  to  the  jury  the  issues  of 

fact  made  in  the  pleadings,  accompanied  by  such  instructions 

as  to  each  issue  as  the  nature  of  the  case  may  require ;  and  it 

is  the  duty  of  the  court  to  distinguish  between  and  call  the 

attention  of  the  jury  to  the  material  allegations  of  fact  which 

are  admitted  and  those  which  are  denied.     It  is  not  sufficient 

to  read  the  pleadings  to  the  jury. 

Railroad   v.   Loekwood,    72   0.    ?.   5S6. 
See  Jones  v.  Bank  Co.,  05  O.  S.  253,  200. 

(b)  It  is  improper  to  refer  the  jury  to  the  pleadings  and 

neglect  to  state  the  issues,  especially  when  there  are  several 

issues.     And  when  the  issues  are   correctly  stated,   it   is  not 

necessary  to  read  the  pleadings  or  send  them  to  the  jury. 

Provision    Co.   v.    Blaha,    18    C.    C.    (N.S.)    33. 

Railway  v.   Beckwitli,    12   C.   D.   559. 

Greve  v.   Traction   Co.,   15   X.  P.    (X.S.)    280. 

(c)  In  instructing  a  jury  on  the  vital  issues  of  a  ease 
about  to  be  submitted  to  them  for  determination,  it  is  not 
prejudicial  error  to  so  group  or  summarize  the  issues  that  the 
jury  may  intelligently  understand  them. 

Traction  Co.  v.  Hart,  2  0.  A  pp.   1,  19  C.  C.    (X.S.)    71,  25  C.  D.   347. 

(d)  Tlie  object  of  a  charge  is  to  bring  into  view  the  issues 
in  the  case  and  other  aspects  developed  at  the  trial,  and  to 
show  the  jury  by  a  proper  statement  of  the  law  how  the  evi- 
dence should  be  applied;  when  that  is  done,  in  legal  view, 
the  charge  is  complete.  "When  an  instruction  has  been  once 
clearly  stated,  it  is  right  not  to  repeat  it  in  varied  form  of 
expression;  and  1o  avoid  confusion  in  the  minds  of  the  jury, 
it  is  generally  Avise  to  refuse  to  do  so. 

Donald   V.   State,   11    C.   P.  483,  21   C.  C.   124. 

(e)  Where  from  a   consideration    of  1h(^  whole   charge   of 
the  court,  it  is  seen   Ihat   tlic  JMi'v  has  been   given  a  compre- 


§95  METZLER'S    OHIO    TRIAL    EVIDENCE  122 

hensive  and  intelligible  instruction  concerning  the  issues  and 
the  application  of  technical  terms  used,  the  fact  that  a  par- 
ticular term  is  also  used  in  a  special  charge,  or  in  other  parts 
of  the  general  charge,  without  such  explanation,  should  not 
be  held  to  be  erroneous. 

Piqua  V.  Morris,  98  0.  S.  42. 

(f)  The  charge  of  the  court  to  the  jury  should  be  founded 
upon  and  be  applicable  to  the  issues  and  the  evidence  in  the 
case.  And  the  rule  that  the  court  ought  to  adapt  its  charge 
to  the  issues  made  by  the  pleadings  and  the  evidence,  forbids 
the  introduction  of  instructions  upon  an  issue  not  so  raised. 
For  example,  the  court  should  not  charge  the  jury  on  the 
subject  of  the  last  clear  chance  when  that  issue  is  not  pre- 
sented in  the  pleadings  or  by  the  evidence. 

Lytle  V.  Boyer,  33  0.  S.  506. 
Traction    Co.   v.    Forrest,    73   0.   S.    1. 
Armstrong  v.  Siddall,   12  C.  D.  627. 
Railway  v.  Janeski,  4  C.  D.  218,  12  C.  C.  685. 
Cromley  v.  State,   19  C.  C.    (X.S.)    526,  26  C.  D.  209. 
State  V.   Linder,  76  O.   S.  463. 

Railways  &  Light  Co.  v.  Poland,  7  0.  Ai)p.  3(17,  27  0.  C.  A.  lO.i,  28 
C.   D.    198. 

(g)  Where  no  evidence  is  offered  upon  an  issue  joined  by 
the  pleadings  in  the  case,  the  trial-court  is  not  required  to 
charge  the  jury  upon  such  issue ;  but,  on  the  contrary,  the 
jury  should  be  directed  not  to  consider  it. 

Lewistown  Co.  v.  Stone  Co.,  92  0.  S.  76. 
Boviard   Co.   v.   Maitland,   92    0.   S.   201,   206. 

(h)  Where,  upon  a  trial  before  a  jury,  a  charge  pertinent 
to  the  evidence  is  asked,  it  is  error  for  the  court  to  annex  to 
such  charge  a  material  qualitication  based  upon  a  state  of 
facts  purely  conjectural,  and  as  to  w^hich  it  affirmatively  ap- 
pears that  no  evidence  has  been  given  to  the  jury.  And  if 
prejudicial,  it  calls  for  a  reversal. 

Bain  v.  Wilson,   10  O.  S.   14. 
Walker    v.    Stetson,    14    0.    S.    89. 
French  v.   Millard,   2   0.   S.  44. 
Railway  v.  Bixler,   12  C.  D.  653. 


123  COURT     AND     JURY  §96 

(i)  A  charge  to  tlie  jury  should  be  a  plain,  distinct,  and 
unambiguous  statement  of  the  law  as  applicable  to  the  ease 
made  before  the  jury  by  the  proof,  and  not  mere  abstract 
legal  rules.  A  refusal  to  give  a  charge  embracing  a  mere  ab- 
stract question  of  law,  having  no  application  to  the  issue  and 
facts  of  the  case  on  trial,  is  no  ground  for  reversing  a 
judgment. 

Parmlee  v.  Adolph,-28  0.  S.  10. 

Railway  v.  Firming,  30  O.  S.  480. 

Coal  Co.  V.   Esticvenard.  53  0.  S.  4.^ 

Eailroad   v.   Picksley,   24   0.   S.   654. 

Bank   v.   Litt,   5   0.  App.   439,  26   C.   C.    (X.S.)    14.5,   30  C.  D.   361. 

(j)  If  a  single  fact  would  be  decisive  of  the  rights  of  the 
parties,  the  court  may  charge  that  if  the  jury  finds  that  this 
particular  fact  has  been  proved,  they  should  return  a  verdict 
for  the  party  in  whose  favor  such  fact  is  established, 

Richardson  v.  Curtiss,  33  0.  S.  329. 

(k)  A  party  is  not  entitled  to  have  the  jury  instructed  to 
render  a  verdict  in  his  favor  upon  a  hypothetical  statement  of 
the  facts  of  the  case,  if  the  statement  omits  material  facts 
upon  which  testimony  has  been  offered,  and  where  the  finding 
of  the  omitted  facts  against  the  party  would  change  the  re- 
sult of  the  case. 

Eailroad  v.   Crawford,  24  0.  S.   631. 

Jenkins  v.   Railroad,  2   Disney  49,   3   Gaz.   117. 

96.  TWO  ISSUES. 

(a)  Where  two  issues  are  presented  in  the  pleadings  and 
there  is  a  verdict  finding  the  issues  for  the  defendant,  and 
such  finding  on  either  issue  entitles  him  to  a  general  judg- 
ment in  his  favor,  and  a  judgment  is  rendered  on  the  verdict, 
such  judgment  will  not  be  reversed  for  error  in  the  instruc- 
tions of  the  court  to  the  jury  relatincr  exclusively  to  one  of 
the  issues. 

MMllistpr  V.  TTartzell,   60  0.   S.  60. 

Sites   V.   Ilaverstick,   23   O.    S.   626. 

Brown  v.  Dusha,  I  0.  App.  232,  20  C.  C.    (X.S.)   310,  25  C.  D.  437. 

Reese  v.  Mannen  Co.,  19  C.  C.   (X.S.)    194. 


§97  METZLER'S    OHIO    TRIAL    EVIDENCE  124 

(b)  The  reason  for  the  foregoing  rule  is  that  the  jury- 
might  have  based  its  verdict  on  the  issue  in  which  there  was 
no  error.  In  order  to  avoid  this  situation,  it  is  suggested  that 
the  record  be  made  to  show  on  what  issue  the  jury  decides 
the  case  by  answers  to  interrogatories  submitted  to  it. 

Beecher  v.  Dnnlap,  52  0.  S.  64,  65. 
State,  ex  rcl..  v.  Hills,  94  0.  S.  171. 
Niemes    v.    Nienies,   97    0.   S.    14.5,    149. 

(c)  However,  where  a  verdict  for  the  plaintiff  might  have 
been  rendered  upon  either  of  two  causes  of  action,  but  it  does 
not  appear  upon  which,  a  refusal  to  give  a  proper  instruction 
on  behalf  of  the  defendant  as  to  either  cause  of  action  will 
entitle  him  to  a  new  trial. 

Penn.  Co.  v.  Miller,  .35  0.  S.  541. 

Contra,  Railway  v.   Powell,  22   C.   C.    (X.S.)    305. 

(d)  If  two  or  more  defenses  have  been  introduced,  each  of 
which  is  sufficient,  it  is  error  for  the  court  to  instruct  the  jury 
that  they  must  find  that  all  of  such  defenses  have  been  estab- 
lished by  a  preponderance  of  the  evidence. 

Jones   V.   Bank   Co.,   95   0.   S.  253,   260. 


97.  SUMMING  UP  THE  EVIDENCE. 

(a)  The  court  in  charging  the  jury  may  properly  recite 
what  is  claimed  by  the  parties  to  be  proved,  where  this  is 
fairly  done  for  the  purpose  of  a  proper  explanation  of  the  law 
applicable  to  the  case.  But  the  statement  of  the  evidence  by 
the  court  argumentatively,  so  as  to  give  the  jury  the  manifest 
conclusion  of  the  court  as  to  the  fact  submitted  to  their  deter- 
mination, is  uniformly  condemned  as  improper. 

Mimms  v.   State,   16   0.  S.  221. 

Insurance  Co.  v.   Insurance   Co.,   5   0.   S.   450,   482. 

Delaware  v.   Construction  Co.,  21   C.  C.    (X.S.)    137. 

(b)  The  fact  that  juries  are  alert  to  catch  the  least  note 
from  the  presiding  judge  as  to  his  view  of  the  dominant  ques- 
tions in  the  case,  renders  it  of  first  importance  where  the 
judge  undertakes  to  state  the  testimony  in  his  charge,  that  he 
state  it  correctly ;  a  substantia'!  variation  in  his  statement  as 


125  COURT     AND     JURY  §97 

to  the  testimony  relating  to  a  controlling  issue  is  ground  for 
reversal. 

Wuest  V.  Railway,  5  C.  C.    (X.S.)    G19.  17  C.  D.  3G5. 

Church  V.  Crocker,  7  C.  C.  327,  4  C.  D.  619. 

(c)  In  the  trial  of  a  jury  case,  the  judge  is  not  required  to 
sum  up  the  evidence.  It  is  not  imi)roper  to  do  so,  providing 
it  is  fairly  done,  and  all  the  material  evidence  on  both  sides 
fairly  presented.  But  it  is  improper  and  erroneous  for  the 
judge  to  single  out  isolated  parts  of  the  testimony,  and  in- 
struct as  to  the  law  arising  on  the  facts  which  such  testimony 
tends  to  prove,  or  to  give  undue  prominence  to  some  portions 
of  the  testimony,  and  entirely  pass  over  other  portions  equally 
important  or  give  the  same  but  slight  attention. 

Morgan  v.  State.  4S  0.  S.  371. 

Railway  v.  Morehnul,  12  C.  D.  012. 

Rapp  V.  Becker,  4  C.   C.    (X.S.)    139,   IG  C.  D.  321. 

(d)  The  court  should  not  give  special  prominence  to  par- 
ticular circumstances  of  a  case.  But  recalling  the  jury  and 
emphasizing  certain  parts  of  the  charge  previously  given  is 
not  reversible  if  the  circumstances  of  the  trial  warrant  it. 

Railroad  v.  Everett,  10  C.  D.  493,  19  C.  C.  205,  215. 

Chatfield   &   Woods   Co.   v.   Eekert,  2  0.   L.  R.  440,   71   0.   S,  544. 

Powers  V.  Boehme,   17  C.  C.    (N.S.)    37. 

(e)  Section  11452  of  the  General  Code  authorizes  the  trial. 

judge  on  request  of  the  jury,  to  state  his  recollection  as  to  the 

testimony  upon  a  disputed  i)oint.     And  in  a  criminal  case,  it 

is  not  error  for  the  court  to  comply  with  such  a  request  from 

the  jury.     IIoAvever,  if  the  witness  is  fair,  he  had  better  be 

a:Ij\.  ed  to  restate  his  evidence. 

Section   11452,  General  Code. 

Ilulse   V.   State,   35   0.    S.   421. 

Simmons  v.   Savings  Society,  2   I'.uil.   2S3,  5  0.   D.  R.  527. 

(f)  Instructions  advising  the  jury  of  the  object  for  which 
particular  items  of  evidence  arc  admitted,  and  cautioning 
them  against  being  misled  by  their  improi)cr  use,  are  cer- 
tainly proper,  and  are  often  called  for  by  the  circumstances 
of  the  case.  But  the  instructions  ought  to  be  so  given  as  not 
to  withdraw  the  evidence  from  the  consideration  of  the  jury, 


§98  METZLER'S    OHIO    TRIAL    EVIDENCE  126 

nor  restrain  them  from  giving  it  such  weight  as  they  believe 
it  deserves. 

Harrington  v.  State,  19  0.  S.  264,  270. 
See  Reid  v.  Sycks,  27  0.  S.  285,  288. 


98.  FACTS  CONSIDERED  WITHOUT  EVIDENCE. 

(a)  It  is  the  general  rule  that  facts  of  which  no  evidence 
is  offered  and  no  presumption  arises  are  legally  outside  of  the 
case,  and  can  not  be  brought  before  the  jury  under  any  pre- 
tense whatever.  If  a  juror  possesses  personal  knowledge  of  a 
fact  pertinent  to  the  issue,  he  must  be  sworn  as  a  witness 
before  any  benefit  can  be  derived  to  either  party  by  the 
knowledge  thus  possessed. 

Insurance   Co.   v.   Cheever,   36   0.   S.   201,  210. 
Railroad  v.  Cavagna,  6  C.  C.  606,  3   C.  D.  608. 
Andrews  v.  Railway,  8  C.  D.  584,  19  C.  C.  699. 

(b)  While  the  jurors  can  not  act  in  any  case  upon  particu- 
lar facts  material  to  its  disposition  resting  in  their  private 
knowledge,  but  should  be  governed  by  the  evidence  adduced, 
they  may,  and  to  act  intelligently,  they  must,  judge  of  the 
weight  and  force  of  that  evidence  by  their  own  general  knowl- 
edge of  the  subject  of  the  inquiry. 

Hossler  v.  Trump,   62   0.   S.    139,   145. 

(c)  When,  upon  the  trial  of  the  general  issue,  in  an  action 
upon  a  quantum  meruit  for  services  of  a  domestic  character, 
the  plaintiff  offers  evidence  showing  the  facts  from  which  the 
promise  to  pay  may  properly  be  inferred,  and  also  showing 
the  nature  and  extent  of  the  services  rendered,  the  case  should 
be  submitted  to  the  jury,  although  no  witness  expresses  an 
opinion  as  to  the  value  of  the  services. 

Hossler  v.   Trump,   62  0.   S.   139. 

Mclntyre   v.   Garlick,   4   C.   D.   429,    8   C.   C.   416. 

Contra,  Johnson  v.   Spiegel,  4  C.  C.   388,  2  C.  D.   612. 

(d)  While  it  would  be  eminently  proper  in  a  personal 
injury  case  to  charge  the  jury  that  in  the  absence  of  evidence 
as  to  the  earnings  of  the  plaintiff,  the  jury  may  use  their  com- 
mon knowledge  as  to  what  persons  similarly   employed   are 


127  COURT    AND     JURY  §99 

accustomed  to  earn,  yet  a  refusal  to  give  such  a  charge  does 
not  constitute  error.  Jurors  need  not  be  instructed  in  what 
they  are  presumed  to  know. 

Traction  Co.  v.  Ward,  6  C.  C.    (X.S.)    3S5,   17   C.  D.   761. 

(e)  In  fixing  the  vahie  of  property  in  a  condemnation 
suit,  the  jury  in  considering  the  evidence  before  them  may 
also  appl}^  their  own  sound  judgment  as  to  value ;  and  where 
it  does  not  appear  that  the  jury  acted  on  any  wrong  basis  or 
with  partiality  or  bias,  their  verdict  will  not  be  set  aside  ex- 
cept for  prejudicial  error. 

Grain  Co.  v.  Cincinnati,  14  C.  C.    (N.S.)    85. 

(f)  However,  it  is  not  error  to  refuse  to  give  a  special 
charge  which  in  effect  tells  the  jury  that  the  impressions  from 
viewing  the  premises  was  evidence  and  better  evidence  than 
the  testimony  of  witnesses  whose  testimony  may  be  in  con- 
flict therewith  as  to  physical  features  and  general  facts  relat- 
ing to  the  land. 

Traction  Co.  v.  Dempsey.  9  N.  P.   (X.S.)   65,  21  0.  D.  694. 

(g)  Where  the  witnesses  describe  a  horse  and  place  a 
value  on  it,  the  court  may  charge  the  jury  that  if  from  the 
other  evidence  they  would  place  a  different  value  on  it,  they 
may  so  decide  on  their  own  judgment. 

Buddenburg  v.  Wearsch,  20  C.  C.    (X.S.)    372. 

(h)  In  an  action  for  malicious  tort,  the  jury  may  in  its 
discretion  allow  a  reasonable  attorney's  fee  to  plaintiff,  but 
without  evidence.  Neither  party  may  prove  the  value  of  such 
services. 

Stevenson  v.  Morris,  37  O.  S.  10. 

99.  NONSUIT— SCINTILLA  RULE. 

(a)  The  trial-court  has  the  power  in  a  proper  ease  to  take 
the  evidence  from  the  jury  and  order  a  peremptory  nonsuit. 
But  the  judgment  entered  has  not  the  effect  of  a  nonsuit  at 
common  law ;  it  is  a  decision  of  the  case  upon  the  merits,  and 
the  judgment  is  final. 

Ellis  V.  Insurance  Co.,  4  0.  S.  628. 

Stockstm    V.    Railroad.   24    0.    S.   83. 

Byrd  v.   Blessing,    11   0.   S.   302. 


^99  METZLER'S    OHIO    TRIAL    EVIDENCE  128 

(b)  When  the  party  having  the  burden  of  proof  has  rested 
and  has  failed  to  introduce  evidence  tending  to  prove  all  facts 
essential  to  a  right  to  recover,  the  court  may,  upon  motion, 
arrest  the  case  from  the  consideration  of  the  jury  and  direct 
a  verdict  for  the  adverse  party. 

Ruffner  v.  Railroad,   6   A.  L.  R.  6So.  5  0.  D.  P..  569. 
See  Burke  v.   Railroad,  06  O.  S.  496,  504. 

(c)  Not  many  years  ago  there  was  a  tendency  in  the 
courts  of  this  state  to  abrogate  the  scintilla  rule ;  but  in  May, 
1913,  the  supreme  court  held  that  it  is  a  denial  of  the  right 
of  trial  by  jury,  and  therefore,  reversible  error,  to  direct  a 
verdict  against  objection,  if  there  is  some  evidence  tending  to 
prove  every  essential  fact;  that  the  right  of  trial  by  jury, 
being  guaranteed  to  all  our  citizens  by  the  constitution  of  the 
state,  can  not  be  invaded  or  violated  by  either  legislative  act 
or  judicial  order, 

Gibbs  v.  Girard,  88  0.  S.  34. 

(d)  A  motion  to  arrest  the  evidence  from  the  jury  and 

render  a  judgment  against  the  party  on  whom  the  burden  of 

proof  rests,  involves  an  admission  of  all  the  facts  which  the 

evidence  tends  to  prove,  and  presents  only  a  question  of  law 

for  the  court ;  but  if  there  is  evidence  tending  to  prove  each 

material  fact  put  in  issue  and  indispensable  to  a  recovery,  it 

should  be  submitted  to  the  jury  under  proper  instructions. 

The  court  can  not  pass  upon  the  weight  and  sufficiency  of  the 

evidence. 

Dick  V.  Railroad,  3S  0.  S.  380. 
Stockstill  V.  Railroad,  24  O.   S.   83. 
Ellis  V.  Insurance  Co.,  4  0.  S.  628. 

(e)  For  the  purpose  of  a  motion  to  direct  a  verdict  for 
defendant,  it  is  said  that  everything  is  admitted  which  the 
evidence  tends  to  prove;  and  this  involves  and  includes  any 
and  every  conclusion  which  a  jury  might  fairly  and  reason- 
ably deduce  from  the  evidence.  That  construction  of  the  evi- 
dence must  be  adopted  which  is  most  favorable  to  the  plaintiff. 

Stewart  v.  Bridge  Co.,  8  C.  D.  454,  15  C.  C.  601. 
Frank  v.  Brewing  Co.,  5  0.  L.  R.  559,  53  Bull.  37. 

(f)  A  party  is  entitled  to  the  opinion  of  the  jury  upon  the 
iV:cts  tending  to  prove  his  case  if  there  is  some  evidence  tend- 


129  COURT    AND    JURY  §  100 

ing  to  prove  each  of  the  material  averments  of  the  petition, 
even  though  the  showing  is  so  slight  that  the  court  would  feel 
called  upon  to  set  aside  a  verdict  rendered  upon  such  insuffi- 
cient evidence. 

Clark  V.  Stitt,  4  G.  D.  51,  12  C.  C.  759. 
Dick  V.   Railroad,  38  0.   S.  3S9,   393. 

(g)  Where  the  court  directs  a  verdict,  there  is  not  an 
opportunity  for  a  retrial  of  the  case ;  whereas,  when  a  verdict 
is  rendered,  if  the  court  finds  that  it  should  be  set  aside  on 
account  of  the  weight  of  the  evidence,  the  party  is  entitled  to 
a  new  trial,  upon  which  it  is  possible  that  he  will  produce 
sufficient  evidence  to  entitle  him  to  a  verdict. 

Cloak  Co.  V.  Credit  Co.,  17  C.  C.   (X.S.)    559,  5G0. 

(h)  The  fact  that  a  trial-court  in  arresting  a  cause  from 
the  jury  based  its  action  on  wrong  grounds  is  immaterial 
where  other  grounds  existed  which  warranted  such  action. 
But  a  court  is  not  authorized  to  direct  a  verdict  for  de- 
fendant on  the  ground  that  plaintiff  has  not  proved  any  dam- 
ages, when  by  a  ruling  of  the  court  the  plaintiff  has  been, 
deprived  of  evidence  necessary  to  make  out  his  case. 

Boswell    V.   Insurance   Co..  26   C.   C.    (N.S.)    3S.i. 

Kneipper  v.  Richards,  7  C.  C.    (X.S.)    5S1,  16  C.  D.  245. 

(i)  In  criminal  cases,  a  question  for  the  jury  must  be  left 
to  the  jury.  Unless  there  is  entire  failure  of  proof  as  to  an 
essential  element  of  the  crime,  the  court  is  not  authorized  to 
direct  a  verdict  for  the  defendant. 

State  V.  Gross,  91  0.  S.   161. 

Cf.   Fastbinder  v.  State,  42  0.   S.  341. 

State  V.  Nuttles,  4  Bull.   963,   7   0.  D.  R.   686. 

100.  NONSUIT— MOTION  BY  ONE  PARTY. 

(a)  A  defendant  who  elects  to  proceed  with  his  evidence 
after  the  overruling  of  his  motion  for  nonsuit,  waives  his  ex- 
ception. If  he  does  not  desire  to  stand  oi  his  exception,  he 
may  introduce  his  evidence  and  then  renew  his  motion  at  the 
close  of  all  the  evidence. 

Doren  v.  Fleming,  6  C.  C.   (N.S.)    81.  17  C.  T).  737. 

Mining  Co.  v.  Jones   Co.,  15   C.   C.    (X.S.)    .369. 

Dannemiller  v.  Zimmerman,  22   C.  C.    (X.S.)    54.>. 

Traction   Co.   v.   Dnrack,   78   0.   S.   243. 
metzleb's  tbial  ev. — 5 


§102  METZLER'S    OHIO    TRIAL    EVIDENCE  130 

(b)  Upon  renewal  of  such  a  motion  at  the  close  of  all  the 
evidence,  any  deficiency  in  the  evidence  for  the  plaintiff  which 
has  been  corrected  by  that  offered  for  the  defendant  inures  to 
the  benefit  of  the  plaintiff. 

Mining  Co.  v.  Jones  Co.,   15   C.  C.    (X.S.)    369. 

101.  NONSUIT— MOTION  BY  EACH  PARTY. 

(a)  "When,  on  the  trial  of  an  action  to  a  jury,  a  motion 
for  a  directed  verdict  is  made  by  the  defendant  at  the  close 
of  plaintiff's  evidence,  and  the  plaintiff  joins  in  said  motion, 
asking  for  a  directed  verdict  in  favor  of  the  plaintiff,  such 
motion  by  the  plaintiff  is  not  a  submission  of  the  cause  to 
the  court,  and  it  is  error  for  the  court  to  sustain  the  same 
and  to  direct  a  verdict  in  plaintiff's  favor,  unless  the  defend- 
ant has  declined  to  offer  any  evidence  and  has  rested  his  case. 
A  motion  by  the  plaintiff  for  a  directed  verdict  acts  as  a  sub- 
mission of  the  entire  case,  only  when  it  is  made  at  the  close 
of  all  the  evidence. 

Canton  v.  Pryke,  5  O.  App.  304,  -20  C.  C.    (X.S.i    -Ifi.-),  27   C.  D.  .130. 

(b)  Where   at   the   close   of   all    the    evidence,    each   party 

moves  for  a  directed  verdict  in  his  favor,  the  parties  thereby 

clothe  the  court  with  the  functions  of  a  jury. 

Bank  v.  Hayes,  64  0.  S.   100. 

Beckel  v.    Insurance   Co.,    15   X.   P.    (X.S.)    266. 

Richter  v.   Loan   Co.,   7   C.    C.    (X.S.)    360,   17   C.   D.   793. 

(c)  And  where  the  party  whose  request  is  denied  does  not 
thereupon  request  to  go  to  the  jury  upon  the  facts,  the  ver- 
dict so  rendered  should  not  be  set  aside  by  a  reviewing  court 
unless  clearly  against  the  weight  of  the  evidence.  And  if  the 
party  whose  motion  is  denied  asks  the  court  to  submit  the 
cause  to  the  jury,  it  is  prejudicial  error  for  the  court  to  refuse. 

Bank  v.  Hayes,  64  0.  S.   100. 

Gilligan  v.  Arcanum,  5  C.   C.    (X.S.)    471,   16   C.  D.   42. 

Perkins  v.  Commissioners,  88  O.  S.  495. 

102.  CASES  FOR  THE  JURY. 

(a)  Where  there  is  evidence  upon  both  sides,  which  is 
conflicting,  it  is  error  to  direct  a  verdict  for  either  party, 


131  COURT    AND    JURY  §  102 

although  tlie  court  would  grant  a  new  trial  on  the  weight  of 
the  evidence. 

Hollenbeck  v.   McMahon,  28  0.   S.   1. 

CloaK  Co.  V.  Credit  Co.,   17   C.  C.    (N.S.)    559. 

Mendenhull  v.  Haven,  9  C.  D.  609,   19   C.  C.  6So. 

(b)  And  where  the  plaintiff  has  made  a  prima  facie  case, 

and  the  defendant  has  rebutted  it,  the  court  has  no  authority 

to  direct  the  jury  to  find  a  verdict  for  the  defendant.     Such 

a  case  must  be  reversed,  although  the  reviewing  court  may  be 

satisfied  that  the  defendant  was,  in  fact,  entitled  to  a  verdict. 

NewTiam   v.   Cincinnati,   IS   Oh.   32.3,   334. 
Hughes  V.  Lehan,  1  C.  C.  9,  1   C.  D.  5. 

(c)  "Where  facts  necessary  to  the  determination  of  an 
issue  are  in  dispute,  it  is  error  to  direct  a  verdict;  and  this 
rule  applies  when  there  is  such  a  conflict  in  the  evidence  as 
to  material  facts  that  different  minds  may  arrive  at  different 
conclusions.  And  where  on  error,  the  evidence  is  of  this  char- 
acter, a  reviewing  court  will  not  set  aside  the  verdict  of  the 
jury,  but  its  finding  will  be  accepted  as  conclusive.  And  the 
judgment  of  a  trial-judge  who  has  passed  upon  the  suflficieney 
and  weight  of  such  evidence  will  not  be  disturbed. 

Business  College  v.  Lloyd,  60  0.  S.  448. 

Burton  v.  Granite  Co.,  5  0.  .\pi).  117,  25  C.  C.  (X.S.)  470,  27  C.  D. 
134. 

Crawford  v.  Merrell,  .5  0.  App.   146,  25  C.  C.    (N.S.)    537,  27  C.   I).   104. 

Whiting  V.  State,  48  0.  S.  220. 

Loney   v.   Hall,   8   0.   App.    1.14,  28   0.   C.    A.    14,  2!)    C.    1).   453. 

(d)  And  where  there  is  no  substantial  conflict  in  the  testi- 
mony, but  the  unconfiicting  testimony  discloses  a  variety  of 
circumstances  from  which  different  minds  may  reasonably 
arrive  at  different  conclusions  as  to  that  issue,  it  is  the  duty 
of  the  court  to  submit  it  to  the  jury. 

Hickman  v.  Tn.surancc  Co.,  92  0.  S.  87. 

(e)  It  is  for  the  jury  to  say  whether  a  party  has  sustained 
his  burden  of  proof;  and  it  is  error  for  the  court  to  direct  a 
verdict  for  one  having  the  burden  of  proof,  though  his  uncon- 
tradicted evidence  makes  a  prima  facie  case. 

"Railway  v.  Rnydor,  21    C.   C.    (X.S.)    504. 

Forsfhn.-r   v.    Mellick,   16   C.    C.    (X.S.)    309. 

Cf.  Bode  V.  Werner,  4   C.    C.    (X.S.)    158.    16  C.   D.   206. 


§103  METZLER'S   OHIO   TRIAL    EVIDENCE  132 

(f)  It  is  error  to  instruct  the  jury  to  tind  on  any  point  in 
favor  of  a  party  holding  the  burden  of  proof  as  to  such  point, 
unless  the  same  is  admitted  by  the  opposing  party  in  such 
wise  as  to  dispense  witli  proof,  or  unless  the  law  attaches  to 
such  evidence  as  is  produced  the  quality  of  being  conclusive. 

Degraw  v.  Lampert,   17   C.   C.    (X.S.)    401. 

See   Brick   Co.   v.   Koblitz,   22   C.   C.    (N.S.)    5S0. 

(g)  But  a  direction  to  the  jury  to  return  a  verdict  for  the 
jilaintiff  is  not  erroneous  in  a  case  where  the  plaintiff  is  en- 
titled to  recover  on  the  pleadings,  and  his  evidence  also  tended 
to  establish  his  right  to  recover,  and  there  was  no  testimony 
offered  tending  to  disprove  his  case. 

Whelan  v.  Kinsley,  26  0.   S.    131. 

103.  CONCLUSIVE  PROOF. 

(a)  Though  issues  joined  in  a  case  are  triable  to  a  jury, 
when  the  facts  are  conclusively  determined  in  a  manner  not 
affected  by  material  error,  the  application  of  the  law  to  such 
facts  is  a  function  of  the  court ;  and  its  exercise,  when  prop- 
erly invoked,  becomes  a  dutj^  But  when  the  evidence  is  not 
conclusive,  it  is  error  for  the  court  to  take  the  question  from 
the  jury. 

Gas  &  Electric  Co.  v.  Archdeacon.  SO  O.  S.  27. 
Pcnquite   v.    Lawrence,    11    0.    S.    274. 
See  Chase  v.   Brum] age,   58  0.   S.   517. 

(b)  And  this  is  true  at  whatever  stage  of  the  progress  of 
a  case  or  in  whatever  manner  the  material  facts  may  be  thus 
established,  whether  it  is  by  the  statements  of  counsel  for  the 
purpose  of  the  trial,  or  by  the  failure  of  the  party  upon  whom 
the  burden  of  proof  rests  to  offer  substantial  evidence  in  favor 
of  all  the  allegations  which  the  issues  require  him  to  support, 
or  by  the  concurrent  testimony  of  all  the  witnesses,  or  by  an 
agreed  statement  of  facts,  or  by  a  special  verdict,  or  by  the 
answer  of  the  jury  to  interrogatories. 

Gas  &  Electric  Co.  v.  Archdeacon.  SO  0.  S.  27,  .*?8. 

(c)  The  court  may  direct  a  verdict  for  the  defendant 
where  there  is  no  conflict  in  the  evidence  as  to  a  material 
fact,  and  no  inference   can  be   drawn   except   that   which   is 


lo3  COURT    AND     JURY  §104 

favorable  to  the  defendant.  And  where  the  evidence  of  the 
defendant  is  exelnsively  documentary,  raises  a  question  of  law 
only,  and  shows  that  the  verdict  must  be  for  the  defendant, 
the  court  has  power  to  direct  such  a  verdict. 

rioots   V.   Kilbroth,   18   Bull.  5S,   10  O.  D.  T^.  20. 
Kohl  V.  Hannaford,  4  A.  L.  R.  372,  5  0.  D.  R.  306. 

(d)  When  the  controlling  facts  are  conceded  on  the  trial, 
it  is  not  error  for  the  court  to  direct  the  jury  to  bring  in  a 
verdict  in  accordance  with  such  facts;  and  a  right  verdict 
based  on  wrong  reasons  will  not  be  set  aside  if  on  the  con- 
ceded facts  it  was  clearly  right. 

Rank  v.   Craig,  63  0.  S.  374. 

King  V.  Herb,  9  C.  D.  7!)7,  IS  C.  C.  41. 

(e)  A  defendant  is  entitled  to  have  the  cause  withdraAvn 
from  the  jury,  and  a  dismissal  of  the  petition  entered,  when 
counsel  for  the  plaintiff  in  his  opening  statement  to  the  jury 
fails  to  state  facts  which  support  the  essential  averments  of 
the  petition,  and  he  is  unable  to  add  to  the  facts  which  he  has 
presented.  But  directing  a  verdict  for  the  defendant  on  plain- 
tiff's opening  statement  is  reversible  error  where  no  oppor- 
tunity is  given  to  plaintiff  to  modify,  explain,  or  add  to  his 
statement. 

Cornell  v.  Morrison,  87  0.  S.  215. 

Rodeff  V.  Railway,  7  0.  App.  73,  27  0.  C.  A.  571,  2!)  C.  D.  105. 
See  Davis  v.  Railway.  15  X.   P.    (X.S.)    416,  24  0.  1).   172. 
Piano  Co.  v.  Stewart,  25  C.  C.   (X.S.)   270,  27  C.  D.  428. 

104.  IN  NEGLIGENCE  CASES. 

(a)  In  an  action  for  alleged  negligence,  the  question  of 
negligence  on  the  part  of  the  defendant  or  of  contributory 
negligence  on  the  part  of  the  plaintiff  is  a  mixed  question  of 
law  and  fact  to  be  decided  by  the  jury  under  proper  instruc- 
tions from  the  court. 

Railroad  v.  Crawford,  24  0.  S.  631. 

Railway   v.    Fleming,    30   0.    S.    480. 

Pennsylvania  Co.  v.   Rathgeb,   32   0.   S.  GO. 

Railway  v.  Mendenhall,  7  O.  App.  356,  27  O.  C.  A.  376. 

(b)  But  if  all  the  material  facts  touching  the  alleged  neir- 
ligence  are  undisputed,  or  are  found  by  the  jury,  and  admit 


§104  METZLER'S   OHIO    TRIAL    EVIDENCE  134 

of  no  rational  inference  but  that  of  negligence,  the  question  of 
negligence  becomes  a  matter  of  law  merely,  and  the  court 
should  so  charge  the  jury. 

T^ailroad  v.  Crawford,  24  0.  S.  631. 

Pennsylvania  Co.  v.  Rathgeb,   32   0.   S.  GG. 

(c)  If,  however,  the  testimony  is  conflicting  and  the  facts 

uncertain,   or   the   proper  inferences   to   be   drawn   therefrom 

doubtful,  it  would  be  error  for  the  court  to  withdraw  the  case 

from  the  jury  or  direct  them  to  return  a  particular  verdict. 

Railroad  v.  Crawford,  24  0.  S.  631. 

Railway    v.    Wadsworth,   1    C.  C.    (X.S.)    483,    lo   C.   D.   37G. 

(d)  A  motion  to  direct  a  verdict  for  the  defendant  in  a 
negligence  case  involves  the  scintilla  rule.  Therefore,  if  there 
is  any  evidence,  hoM^ever  slight,  tending  to  prove  each  of  the 
material  allegations  necessary  for  the  plaintiff  to  recover,  the 
court  can  not  properly  direct  the  verdict  for  the  defendant 
under  that  rule. 

Railroad  v.  Van  Horn,  21   C.   C.   337,   12   C.  D.   106. 

Railway  v.  Andrews,  oS  0.  S.  426. 

Railway  v.  Marsh,  63  0.  S.  236. 

Bender  v.  Hanna,    16   C.   C.    (N.S.)    387. 

Gerwe  v.  Fireworks  Co.,  12  C.  C.  420,  5  C.  D.  616. 

(e)  But  it  is  not  error  for  the  trial-court  to  direct  a  ver- 
dict for  the  defendant  where  the  plaintiff  offers  no  evidence 
tending  to  prove  either  that  the  defendant  was  negligent  in 
the  particulars  averred  in  the  petition,  or  that  the  negligent 
acts  complained  of  were  the  proximate  cause  of  the  injury. 

Brewing   Co.   v.   Ulland,   97   0.    S.  210. 

(f)  To  establish  negligence,  there  should  be  either  direct 
proof  of  the  facts  constituting  such  negligence,  or  proof  of 
facts  from  which  negligence  may  be  reasonably  inferred.  In 
the  absence  of  direct  evidence,  an  allegation  of  negligence  is 
not  sustained  by  proof  of  circumstances  from  which  the  infer- 
ence that  the  injuries  were  caused  by  such  negligence  is  not 
a  more  natural  inference  than  any  other. 

Railway  v.  TNlarsli,  63  O.   S.  236. 

Railway  v.  Andrews,  58  0.  S.  426. 

Wagner  v.   Construction  Co.,   17   C.   C.    (X.S.)    134. 

Smith  V.  Curtiss,  10  C.  C.    (X.S.)    140,  20  C.  D.  29. 

Railroad  v.  INIcMillan,  37  0.  S.  554. 


135  COURT    AND    JURY  §105 

(g)  In  an  action  against  a  railway  company  for  damages 
sustained  by  fire,  which  it  is  alleged  was  started  by  sparks 
from  one  of  the  defendant's  locomotives,  a  motion  for  a 
directed  verdict  for  the  defendant  lies,  when  the  circum- 
stances, shown  to  have  existed  at  the  time,  fail  to  afford  a 
basis  for  a  fair  and  reasonable  inference  as  to  the  cause  of 
the  fire,  but  rests  wholly  on  guess  and  conjecture. 

Hoop    Co.    V.   Railway,   20   X.   P.    (X.S.)    529.    28    0.    D.    .373. 

(h)  Where  the  evidence  of  the  plaintiff  shows  actionable 
negligence  on  the  part  of  the  defendant,  and  the  question  of 
contributory  negligence  depends  on  a  variety  of  circumstances, 
from  which  different  minds  may  reasonably  arrive  at  differ- 
ent conclusions  as  to  whether  there  was  negligence,  the  ques- 
tions should  be  submitted  to  the  jury  under  proper  instructions. 

Eailroad  v.  Picksley,  24  0.  S.  654. 

Railway  v.  Murphy,   50   0.   S.    135. 

Railway  v.  Sncll,  54  0.  S.  197. 

Kelly  V.  Howell,  41  0.   S.  438. 

Weingartner  v.  Railway,   3  0.  App.  12,  21   C.  C.    (X.S.)    494. 

Railway    v.    Weingertmr,    93    0.    S.    124. 

105.  IN  WILL  CONTESTS. 

(a)  In  the  trial  of  a  contest  of  a  will,  where  the  testimony 
introduced  does  not  tend  to  prove  the  issue  on  the  part  of  the 
plaintiffs  showing  incapacity  of  the  decedent  to  make  a  will, 
the  trial-court  may  direct  the  jury  to  find  a  verdict  sustaining 
the  will.  Where  no  evidence  was  proffered  as  to  whether  a 
properly  executed  will  was  or  was  not  road  to  the  testator 
and  explained  to  him  at  the  time  of  its  execution,  but  it  ap- 
pears that  his  mental  condition  was  such  as  to  leave  no  doubt 
of  his  capacity  to  make  an  intelligible  and  discreet  disposition 
of  his  property,  and  it  is  in  evidence  that  when  the  will  was 
republished  by  the  addition  of  codicils  it  was  read  and  ex- 
plained to  him  paragraph  by  paragraph,  it  is  not  error  to 
direct  a  verdict  for  the  defendants. 

Waprner   v.   Ziejrler,   44    0.    S.   59. 

Morris    v.    Osborne,   27    0.    C.    A.    IHl,   29    C.    T>.   2S0. 

Edwards   v.   Davis,   30  Bull.   2S3.    II    O.    D.   R.   S7f.. 

(b)     In  a  will  contest,  the  jury  and  not  the  trial-judge  is 
required  to  weigh  the  evidence  and  determine  whether  or  not 


§105  METZLER'S   OHIO   TRIAL    EVIDENCE  136 

the  contestant  has  offered  sufficient  evidence  to  overcome  the 
prima  facie  case  made  by  evidence  of  the  original  will  and 
record  of  its  probate.  Hence,  evidence  having  been  offered 
on  the  part  of  contestant  tending  to  jn^ove  each  material  fact 
in  issue,  it  is  exercising  the  province  of  tlie  jury  for  the  court 
to  ignore  the  evidence  and  direct  a  verdict  for  defendants. 
This  case  has  been  affirmed  by  the  supreme  court  of  the  state, 
which  holds  that  the  scintilla  rule  of  evidence  is  to  be  applied 
in  will  contests  as  in  the  ordinary  jury  trial  of  a  civil  action. 

McFarland  v.   Clark,  2S   0.   C.   A.  -217,   21)   C.   D.   -I'.H. 

Clark    V.    McFarlanJ,    91)    ().    S.   — . 

(c)  Prior  to  the  decision  of  the  supreme  court,  it  had  been 
held  that  where  a  motion  is  interposed  at  the  close  of  the 
evidence  for  the  contestants  in  a  will  case,  to  direct  a  verdict 
for  the  contestees,  the  trial-judge  is  not  bound  by  the  scintilla 
rule;  but  would  determine  whether  the  evidence  which  had 
been  offered  was  sufficient  to  countervail  the  prima  facie  case 
made  by  the  order  of  probate.  This  rule  is  contrary  to  the 
rule  in  civil  cases  generally. 

Gomien    v.    Weidemer,   27    0.    C.    A.    177,   29   C.    D.    1. 
Kamniunn   v.    Kanimann,    6   0.   App.   433,   2(i    C.    C.    (X.S.)    60,  29   C.   D. 
349. 

Schneider   v.    Reitelbach,    17.X.   P.    (X.f^.)    124,   25  O.  D.    107. 
Hall   V.   Hall.    13   ().   D.    1C7,   2   0.   L.   R.   32S. 
Beresford    v.    Stanley,   9    0.    D.    134,    6   N.   P.   3S. 

(d)  On  the  trial  of  an  action  to  contest  the  validity  of  a 
will,  when  it  appears  on  the  face  of  the  will  that  it  was  not 
signed  at  the  end  thereof  as  required  by  statute,  it  is  not 
error  for  the  trial-judge  to  direct  a  verdict  that  the  writing 
is  not  a  valid  will. 

Sears    v.   Sears,    77    0.    S.    104. 

(e)  "Where  it  is  evident  from  the  testimony  that  the  will 
was  not  read  either  to  or  by  the  testator,  that  it  was  not 
acknowledged  by  him,  and  that  he  had  no  knowledge  of  what 
it  contained,  it  can  not  be  said  that  such  will  was  executed 
by  the  testator  in  such  a  manner  as  to  comply  with  the  re- 
quirements of  the  statute;  and  the  verdict  of  a  jury  sustain- 
ing such  will  is  not  sustained  by  the  evidence  and  Avill  be  set 
aside.- 

Koch    V.    Meyers,   7   0.   App.    300,   29   O.   C.   A.    142,    30   C.   D.   439. 
See  Wass  v.  Trust  Co.,  15  0.  D.  677. 


CHAPTER  VIII. 
ISSUE  AND  VARIANCE. 

106.  General   principles. 

107.  Immaterial    variance. 

108.  Material    variance. 

109.  Time   for  objection. 

110.  Conforming    pleading    to    proof. 

111.  Inserting   allegations. 

112.  Defect   waived. 

113.  Objection   before  trial — Defect  not  waived. 

114.  Failure   of  proof. 

11.5.  Variance    as    to   immaterial   allegations. 

116.  Rule  applied  to  answers. 

117.  Rule  applied  to  replies. 

106.  GENERAL  PRINCIPLES. 

(a)  The  law  has  established  well-defined  rules  determin- 
ing the  admissibility  of  evidence,  one  of  which  is  that  the  evi- 
dence offered  must  correspond  with  the  allegations  and  be 
confined  to  the  point  in  issue.  The  allegations  and  proof  must 
substantially  agree. 

Insurance  Co.  v.  Cheever,  36  0.  S.  201,  210. 
Palmer  v.  llumistoii,  87  0.  S.  401. 
Reynolds  v.  Morris,  7  0.  S.  310,  315. 
Henkle  v.   McClure,   32   0.   S.   202. 

(b)  Therefore,  a  party  may  object  if  the  evidence  offered 
by  the  other  side  is  not  confined  to  the  issue.  However,  when 
a  pleading  is  only  indefinite,  the  courts  are  liberal  in  admit- 
ting evidence  to  prove  the  allegations.  Objections  to  evidence 
in  such  cases  are  not  favored  for  the  reason  that  the  adverse 
party  might  have  required  the  pleading  to  be  made  definite 
and  certain  by  a  motion  for  that  purpose. 

See  Section    11336,  General   Code. 
Bates  Pleading,  p.   540. 

(c)  The  sufficiency  of  pleadings  under  the  code  as  to  cer- 
tainty,  precision,   definiteness,   and  consistency  of  allegations, 

137 


'§106  M^TZU^R'S   OHIO  TRIAL   EVIDENCE  138 

and  in  respect  to  all  defects  of  allegations  except  omission  of 
a  fact  necessary  to  the  action  or  defense,  must  be  objected  to 
by  motion  to  make  definite  and  certain;  and  if  the  parties 
proceed  to  trial,  the  objection  is  waived. 

Trustees  v.  Odlin,  8  0.   S.  293,  297. 

Tuttle  V.   Furi,  22   C.   C.    (N.S.)    388,  390. 

(d)  "Where  a  defendant  by  way  of  defense  to  a  note, 
pleads  in  general  terms  that  it  is  wholly  without  consideration 
and  void,  and  the  plaintiff  joins  issue  without  requiring  the 
answer  to  be  made  definite  by  a  statement  of  the  facts  on 
■which  the  defense  is  based,  any  evidence  is  admissible  on  the 
trial  which  tends  to  impeach  or  sustain  the  consideration. 

Chamberlain  v.  Railroad,  15  0.  S.  225,  250. 

(e)  AA^here  a  petition  for  personal  injuries  sets  forth  that 
plaintiff  has  been  put  to  great  expense  for  nursing  and  medi- 
cines, but  does  not  set  forth  the  amount  thereof  separately, 
evidence  of  the  value  of  medical  services  is  admissible,  if 
there  was  no  motion  to  make  such  petition  definite  and  cer- 
tain in  this  particular. 

■Railway  v.  Westenluibor,   12   C.  D.  22,  22   C.   C.   67. 
Railway  v.  Tuclcer,  7  C.  D.  169,  13  C.  C.  411. 

(f)  Where  the  defendant  is  charged  with  a  tort  on  a  cer- 
tain day,  and  at  other  times  between  certain  named  dates,  and 
the  defeiulant  did  not  file  a  motion  to  make  definite,  evidence 
of  any  such  toit  between  the  dates  named  may  be  considered 
as  a  ground  for  recovery, 

Alpin  V.  TiIortoTi.  21   0.  R.   536. 

See  Heeney  v.  Kilbane,  59  0.  S.  499. 

(g")  The  general  rule  is  that  no  act  of  negligence  can  be 
proved  unless  it  is  alleged  in  the  petition.  However,  the  alle- 
gation that  the  defendant  negligently  committed  the  particu- 
lar act  which  led  to  the  injury,  furnishes  the  predicate  for  the 
proof  of  all  such  incidental  facts  and  circumstances,  both  of 
omission  and  commission  as  fairly  tend  to  establish  the  negli- 
gence of  the  primary  fact  complained  of. 

Railroad  v.  Lockwood,  72  0.  S.  586. 

Davis  V.  Guarnieri,  45  0.  S.  470,  485. 

Railway  v.  Janeski,  4  C.  D.  218,  12  C.  C.  685. 

Cf.  Railroad  v.   Kistler,  66  O.    S.   326,   .333. 


139  ISSUE     AND     VARIANCE  §107 

(h)  In  will  contests,  the  issue  having  been  prescribed  by 
statute,  the  general  rule  does  not  apply;  and  any  competent 
evidence  tending  to  prove  that  the  instrument  is  not  the  valid 
Avill  of  the  testator  is  admissible,  although  the  specific  ground 
of  contest  to  v/hich  the  evidence  relates  is  not  alleged  in  the 
petition. 

Dew  V.  Reid  52  0.  S.  519. 

(i)  When  the  allegations  of  a  pleading  are  so  indefinite 
and  uncertain  that  the  precise  nature  of  the  charge  or  defense 
is  not  apparent,  and  a  motion  is  made  to  require  such  plead- 
ing to  be  made  definite  and  certain,  it  is  error  to  overrule 
such  motion. 

Railroad  v,  Kistler,  66  0.  S.  326. 

Cf.  Hazen  v.   O'Connor,  8  C.  D.   87,  14  C.   C.   529. 

(j)  But  the  rule  confining  evidence  to  the  issue  does  not 
require  that  the  pleadings  should  contain  a  statement  of  such 
facts  as  are  properly  mere  evidence  of  a  fact  in  issue.  A 
party  is  not  required  to  state  the  character  of  the  evidence  on 
v^hich  he  will  rely  to  support  his  averments. 

ReVr  V.  Maohino  Co.,   12  0.  S.  175,  170. 
Railway  v.   Gaffney,   65    0.   S.    104,   118. 
Davis  V.   Guarnieri,  45  0.  S.   470. 

107.   IMMATERIAL  VARIANCE. 

(a)  When  the  variance  between  the  allegation  in  a  plead- 
ing and  the  proof  is  not  material,  the  court  may  direct  the 
fact  to  be  found  according  to  the  evidence,  nnd  order  an  im- 
mediate amendment  without  costs. 

Sec  Section  11557,  General  Code. 

(b)  The  evident  object  of  the  code  is  to  vest  in  the  court 
a  discretion  to  try  the  case  upon  the  evidence  outside  of  the 
pleadings  where  it  can  ))e  (lone  without  surprise  or  injury; 
and  if  objection  is  made,  to  allow  the  })leadings  to  be  con- 
formed to  the  evidence  at  once  and  without  terms. 

nofTman  v.  Gordon.   15  0.  S.  :>11,  218. 
Flynn  v.  Wiltshire,  19  C.  C.   (N.S.)   433. 

(c)  When  the  variance  between  the  allegations  of  the 
pleading  and  tlie  jjroof  is  not  material,  the  fact  that  the  plead- 


§  108  WETZLER'S    OHIO    TRIAL    EVIDENCE  140 

ing  was  not  amended  to  conform  to  the  proof  will  not  consti- 
tute ground  for  the  reversal  of  the  judgment  on  error. 

Sibila  V.   Bahney,   34  0.   S.   399. 
Insurance  Co.  v.  Kelly,  24  0.  S.  345. 
Benninger  v.  Hess,  41   0.   S.   64,  68. 
Railway  v.  Bateman,  16  C.  C.  162,  8  C.  D.  220. 
Barnett  v.  Ward,  36  0.  S.  107. 


108.  MATERIAL  VARIANCE. 

(a)  No  variance  between  the  allegation  in  a  pleading  and 
the  proof  shall  be  deemed  material,  unless  it  has  actually  mis- 
led the  adverse  party  to  his  i)rejudiee  in  maintaining  his 
action  or  defense  upon  the  merits.  When  it  is  alleged  that  a 
party  has  been  so  misled,  that  fact  must  be  proved  to  the  sat- 
isfaction of  the  court.  It  also  must  be  shown  in  what  respect 
he  has  been  misled.  Thereupon,  the  court  may  order  the 
pleading  to  be  amended  upon  such  terms  as  are  just. 

Section  11556.  General  Code. 

Railway  v.  Seefred,  19  C.  C.    (N.S.)    262. 

(b)  Where  the  admission  of  evidence  not  in  accordance 
with  the  pleadings  is  objected  to,  the  court  may  allow  an 
amendment  to  the  pleadings ;  but  if  the  opposite  party  makes 
a  showing  that  he  has  been  taken  by  surprise,  or  will  be  pre- 
judiced by  the  amendment,  he  is  entitled  to  time  in  which  to 
make  his  pleadings  and  prepare  for  trial. 

Kniphts  V.  Everding.  20  C.   C.   680,   11   C.  D.   419. 
See  also  Barnett  v.  Ward,  36  0.  S.   107,   112. 

(c)  If  the  plaintiff  offers  evidence  to  support  a  ground  of 
recovery  substantially  different  from  that  set  up  in  the  peti- 
tion, and  the  same  is  objected  to  on  that  ground,  proper  prac- 
tice requires  that  such  evidence  shall  be  excluded  until  the 
plaintiff  has  amended  his  pleading  and  an  issue  is  made  up 
respecting  the  new  matter  in  the  amendment. 

nilsinger  v.  Trickett,  86  0.  S.  286. 


'&^ 


(d)  Where  the  evidence  objected  to  will  make  a  material 
variance,  it  is  not  error  for  the  court  to  reject  the  evidence. 
The  party  whose  evidence  is  excluded  should  apply  for  leave 


141  ISSUE     AND     VARIANCE  §  109 

to  amend:  and  this  application  had  better  be  made,  even  when 

the  adverse  party  would  not  be  misled  by  the  variance. 

Xetvburg  v.  Mimshower,  29  0.  S.  617. 
Hiisinger  v.  Trickett,  86  0.  S.  2S6. 
Hill  V.  Supervisors,  10  0.   S.  621. 

(e)  Even  if  tbe  evidence  is  admitted  without   objection, 

it  is  safer  to  amend,  for  the  trial-court  may  confine  the  jury 

to  the  issue  as  made  by  the  i)leadinfi:s.     However,  this  is  not 

the  rule  when  the  variance  is  slight  or  immaterial. 

^rchurin  v.  Stone,  37  0.  S.  49,  58. 

IJanta  v.  Martin,  38  0.  S.  534. 

Todd  V.   Pub'g.   Co.,  9  C.   C.    (X.S'.)    249,   19   C.   D.   155. 

Osseforth  v.  Traction  Co.,  9  N.  P.    (N.S.)    360,  20  0.  D.  285. 

Ely  V.  Borck,  7  0.  App.  49,  27  0.  C.  A.  39S,  29  C.  D.  277. 

(f)  "While  it  may  be  necessary  for  the  record  to  show  an 
amendment  to  a  petition  which  is  wanting  in  a  material  aver- 
ment, in  order  to  support  a  verdict  thereon,  when  the  record 
consists  solely  of  pleadings,  rulings  thereon,  record  of  the  fact 
of  a  trial,  verdict  and  judgment :  yet,  where  there  is  a  bill  of 
exceptions  showing  all  the  evidence  and  proceednigs,  such 
amendment  as  a  general  rule  is  unnecessary  where  the  evi- 
dence and  proceedings  sustain  the  verdict;  in  such  case  au 
amendment  will  be  implied  on  error. 

Railway  v.  Tehan,  16  C.  D.  457,  4  C.  C.    (N.S.)    145. 

109.  TIME  FOR  OBJECTION. 

(a)  Evidence  that  will  make  a  material  variance  should 

be  objected  to  by  the  adverse  party  when  it  is  offered,  or  at 

least  before  the  close  of  the  evidence ;  and  if  no  such  objection 

is  made,  the  exception  can  not  be  saved  by  asking  the  court  to 

charge  the  jury  that  they  can  not  consider  such  evidence. 

Chamberlain  v.  Railroad,  15  0.  S.  225,  250. 
Horning  v.  Poy.-r,  6  C.  I).  370,  18  C.  C.  732. 
Circleville  v.   Sohn,    11   C.   D.    193,  20   C.   C.   368. 

(b)  An  objection  on  the  ground  of  variance  between  the 
proof  and  the  pleading  should  be  taken  on  the  trial.  Where 
this  has  not  been  done,  it  is  too  late  on  error  to  make  the  ob- 
jection. For  M'hen  a  party  suffers  evidence  to  go  to  the  jury- 
without   objection,   it   would  be  manifestly   unjust   to   the  ad- 


§  no  iv:etzler'S  ohio  trial  evidence  142 

verse  party  to  reverse  the  judgnieiit  on   account  of  the   vari- 
ance, even  though  no  amendment  was  asked  or  made. 

Spoer  V.   Bishop,  24   0.   S.   508. 
lIofTman  v.  Gordon,   15  0.  S.  211,  218. 
Scheinesohn   v.   Lemonek,   84  0.   S.    424,   431. 

(c)  When  immaterial  evidence  has  been  admitted  in  be- 
half of  one  party  without  objection,  similar  evidence  then 
becomes  admissible  on  the  part  of  the  adverse  party.  And 
where  plaintiff  is  allowed  against  objection  to  introduce  evi- 
dence on  the  subject  of  negligence  on  the  theory  that  his 
})etition  makes  a  case  of  negligence,  he  should  not  be  heard  to 
object  to  the  evidence  of  defendant  in  rebuttal,  even  if  on  a 
proper  construction  of  the  pleadings,  such  issue  is  not  made. 

McLaughlin  v.  State,  20  C.  C.    (X.S.)    492. 
Duvall   V.  Fuhrnian,   2  C.   D.    174,   3   C.  C.   305. 
Krause  v.   Morgan,   53  0.   S.   26. 


■o"^ 


(d)  Where  the  plaintiff  introduces  evidence  on  a  point  not 
in  issue  without  objection,  and  the  defendant  in  rebuttal  does 
the  same  without  objection,  and  the  court  instructs  the  jury 
that  the  evidence  should  be  considered  in  determining  the 
issue,  which  is  excepted  to  by  the  plaintiff,  there  is  no  preju- 
dicial error. 

Taylor  v.  Boggs,  20  0.   S.   516. 

Cf.  Todd  V.  Pub'g.  Co.,  <)  ('.  ('.    (\.S.)    240,   10  C.  D.  155. 

110.  CONFORMING  PLEADING  TO  PROOF. 

(a)  The  statute  provides  that  before  or  after  judgment, 
in  furtherance  of  justice  and  on  such  terms  as  it  deems  proper, 
the  court  may  amend  any  pleading,  when  the  amendment  does 
not  substantially  change  the  claim  or  defense,  by  conforming 
the  pleading  to  the  facts  proved. 

Section    11363,   General   Code. 

Hazzard   v.  Wallace,  5  C.   C.    (N.S.)    653,   17  C.  D.   147. 

See  Hilsinger  v.   Trickett,  86   0.   S.   286. 

(b)  Where  the  original  petition  contained  averments  mak- 
ing a  case  of  malicious  prosecution,  the  plaintiff  may  be 
allowed   to    amend   after   the    argument   by   striking   out   the 


143  ISSUE     AND     VARIANCE  §110 

averment  of  ''want  of  probable  cause,"  and  alleging  that  sucli 
arrest  was  made  "illegally  and  with  force." 

Spice  V.  Steinruck,  14  0.  S.  213. 

See  Langrueter  v.  Iroquois  Co.,  10  X.  P.    (X.S.)    81,  20  O.  D.  292. 

(c)  When  there  is  no  averment  in  a  case  justifying  puni- 
tive damages,  but  the  facts  of  the  case  as  shown  by  the  evi- 
dence call  for  such  damages,  the  trial-judge  may  charge  the 
jury  on  the  subject,  and  may,  even  after  verdict,  order  that 
the  petition  be  so  amended  as  to  conform  to  the  facts  proved. 

Jacob  V.  Canine,  7  0.  App.  268.  27  0.  C.  A.  6.-5,  28  C.  D.  110. 

(d)  A  petition  may  be  amended  to  conform  to  the  facts 
as  found  by  the  jury  in  special  findings  after  the  expiration  of 
the  three  days  within  w'hich  a  motion  for  new  trial  may  be 
filed.  And  a  reviewing  court  will,  in  the  absence  of  evidence 
to  the  contrary,  assume  that  the  court  was  justified  by  the 
evidence  in  permitting  the  amendment. 

Wicker  v.   Messinger,  22   C.   C.   712,   12  C.  D.   425. 

(e)  But  it  is  an  abuse  of  discretion  to  grant  leave  after 
close  of  all  the  evidence  to  amend  the  petition  so  as  to  insert 
additional  elements  of  damage  to  conform  to  the  evidence 
admitted  against  objection.  It  is  not  error  to  let  the  evidence 
stand,  if  the  charge  confines  recovery  to  the  injuries  specified 
in  the  original  petition. 

Eaihvay  v  TTobart,  13  C.  C.    (X.S.)    502,  22  C.  D.   1.'54. 
Cf.   Railway   v.   Mills,    16   C.   C.    (X.S.)    G2. 

(f)  Where  testimony  not  in  accordance  with  the  plead- 
ings is  admitted  without  objection,  the  court  may  allow  the 
pleadings  to  be  amended  to  conform  to  the  proof.  Where 
parties  choose  to  try  their  case  U})on  a  supposed  issue  and  the 
case  is  fairly  tried,  it  is  too  late  to  urge  in  a  court  of  error 
that  the  issue  tried  was  not  made  by  the  pleadings. 

Knights  V.   Everding,   20   C.   C.   G89,   11    C.  D.  410. 

Bacon  v.   Daniels,   37  0.   S.  279,  281. 

Lariniore  v.  Wells,  29  0.   S.   13,  17. 

Minzey  v.   T^farcy,  6  C.   C.    (X.S.)    593,  15  C.   D.  593,   .507. 

Accident  Assn.  v.  Harrington,  10  C.  C.    (X.S.)    134,  20  C.  D.  612. 

Bonebrake  v.  Columbus,  6  X.   P.    (X.S.)    41,   18  0.  1).   3()7. 

(g)  Where  a  party  cross-examines  a  witness  as  to  facts 
not  in  issue,  and   the  case   is  submitted   to   tlie  jury   without 


§  111  METZLER'S    OHIO    TRIAL    EVIDENCE  144 

objection,  the  court  may  after  verdict  permit  an  amendment 
to  conform  the  petition  to  the  facts  proved  under  Section 
11363  of  the  General  Code. 

Barbour  v.  Miles,  7  C.  D.  682,  14  C.  C.  628. 

(h)  An  amendment  of  the  petition  to  conform  to  the  evi- 
dence is  available  only  when  the  evidence  is  stronger  than  the 
petition.  Where  the  petition  is  much  stronger  than  the  evi- 
dence, so  that  an  amendment  of  the  petition  so  as  to  conform 
to  the  evidence,  would  so  weaken  the  petition  that  it  would 
not  be  sufficient  to  sustain  the  judgment,  there  is  a  failure  of 
proof.  The  facts  proved  must  necessarily  show  a  good  cause 
of  action. 

Karb  v.  State,  54  0.   S.  383,  307. 

Ferguson  v.  Powd(^r  Co.,  6  C.  D.  408,  9  C.  C.  445. 

See  Megrue  v.  Lennox,  50   0.  S.  470. 

Cf.  Brown   v.  Mfg.  Co.,  20  C.   C.    (X.S.)    401. 

111.  INSERTING  ALLEGATIONS. 

(a)  The  statute  provides  that  before  or  after  judgment  in 
furtherance  of  justice  and  on  such  terms  as  it  deems  proper, 
the  court  may  amend  any  pleading  by  inserting  other  allega- 
tions material  to  the  case. 

See  Section   11363,   C.eneral   Coile. 
Bean  v.   Green,  33  0.   S.  444,   453. 
Bates  Pleading,   pp.   459,   540. 

(b)  The  court  may  allow  an  amendment  of  the  petition 
after  verdict  and  before  judgment  is  entered,  even  though  the 
petition  in  its  original  form  did  not  state  a  cause  of  action, 
when  the  evidence  shows  that  a  good  petition  could  be  filed. 

Stowo-Fuller   Co.  v.   Doi-i"i-k.  20   C.    C.    (X.S.)    ",<]. 
Frank   v.   Traction   Co.,  7   X.    P.    (X.S.)    143,    IS   0.   D.   791. 
Huntington  v.  Rogers,  0  0.  S.  511,  517. 
Harper  v.   Dalzell.  27  Bull.   274,   11   0.  D.  R.   531. 

(c)  An  amendment  to  a  petition  does  not  state  a  new  and 
different  cause  of  action,  where,  in  both  the  amended  and  the 
original  petition  the  object  sought  is  recovery  of  damages  for 
the  same  personal  injuries,  and  the  variation  is  only  as  to  the 
I)recise  manner  in   vl^.i:-]!   the   injuries  were   inflicted. 

Brewing  Co.  v.  Betz,  8  C.  C.    (X.S.)    64,   IS  C.  D.  484. 


145  ISSUE     AND     VARIANCE  §113 

112.  DEFECT  WAIVED. 

(a)  A  petition  which  omits  or  defectively  states  a  material 
allegation  is  cured  where  evidence  is  admitted  at  the  trial 
without  objection  to  prove  such  alletration.  and  a  verdict  on 
an  issue  involving  such  allegation  is  returned. 

T?aihvaT  v.  Tohnn.   1(5   C.  T).  457.  4  C.  C.    (X.S.)    145. 
.      Middleton  v.   Westeny,  4  C.   D.   650,  7  C.  C.   39,^. 

(b)  In  an  action  against  an  administrator,  the  objection 
that  the  petition  does  not  aver  that  the  claim  was  presented 
for  allowance,  is  waived  where  the  defendant  joins  issue  and 
goes  to  trial  on  the  validity  of  the  claim  without  objection. 

Pepper  V.   Pidwell.   .^fi  O.   S.  454. 

(c)  Where  the  plaintiff  did  not  allege  ownership  or  that 
the  claim  is  due  and  unpaid,  and  the  case  was  tried  upon  the 
theory  that  these  allegations  were  made,  and  no  demurrer  Avas 
filed  to  the  petition,  the  judgment  Avill  not  be  disturbed  by  a 
reviewing  court  for  failure  to  make  these  allegations. 

Hnwe  V.  T^ailway.   10  C.  D.  220,  18  C.  C.  606. 
Brown   v.   Fiirr.   1!)  C.  C.   (X.S.)   578,  25  C.   D.  466. 
Davey  v.  Miller,  37   Bull.  203. 

(d)  Although  a  petition  in  a  personal  injury  case  is 
faulty  in  not  alleging  that  the  defendant  had  knowledge  of 
the  defects  in  certain  machinery  which  are  alleged  to  have 
caused  the  injury,  if,  without  objection,  evidence  is  intro- 
duced on  this  subject  and  the  case  is  tried  as  though  the  peti- 
tion contained  the  proper  allegations,  the  defect  in  the  petition 
is  cured. 

r-hihcr  V.  nini<;,   19  C.   C.    fX.?.)    414. 
'  towe-Fuller  Co.  v.  Dominick,  20  C.  C.    (N.R.)    556. 
,'-  pronk  V.  Steel  Co.,  10  C.  D.  675,  19  C.  C.  714. 
Cf.  Ilenkel  v.  Stahl,  9  C.  D.   397,  IS  C.  C.  831. 

113.  OBJECTION      BEFORE     TRIAL   —    DEFECT     NOT 
WAIVED. 

^a")  A  party  may  properly  object  to  the  introduction  of 
anv  evidence  to  support  a  fatally  defective  pleading.  To  set 
out  facts  making  only  a  part  of  a  cause  of  action  Avill  not 
justify   the   admission   of   evidence   to   establish    an    entire    or 


§  114  METZLER'S    OHIO    TRIAL    EVIDENCE  146 

good  cause  of  action.  And  failure  to  demur  does  not  forfeit 
the  right.  The  objection,  however,  should  be  presented  be- 
fore the  introduction  of  any  evidence. 

Radcliff  V.   Pvarlnliff.   15   C.   C.  284,   8   C.   D.   278. 
Toledo  V.   .Meiii.Tt.    lo   C.  C.    (X.S.)    545,   548. 
See  Railroad   v.   Davider,   17   C.   C.    (N.S.)    470. 

(b)  Objections  to  any  evidence  under  the  pleading,  no 
objection  having  been  made  before,  are  not  favored ;  and  the 
most  liberal  construction  will  be  then  adopted  to  sustain  the 
pleading  if  possible.  And  the  objection  will  not  be  sustained 
unless  there  is  an  entire  omission  of  material  facts  or  total 
failure  to  state  a  cause  of  action. 

Bates  Pleading,  p.   458. 

(c)  An  objection  of  this  character  does  not  operate  as  an 
objection  to  evidence  thereafter  received  in  support  of  an 
uncertain  allegation  which  might  have  been  made  certain  by 
motion,  where  tlie  petition  states  a  cause  of  action,  even 
though  it  is  inartistically  drawn, 

Tuttlc  V.  Furi,  22  C.  C.   (X.S.)    388. 

(d)  Objection  to  a  counterclaim  not  connected  with  the 
subject  of  the  action  may  be  taken  at  the  trial  by  objecting 
to  the  introduction  of  any  evidence  under  it,  even  though  no 
demurrer  was  filed  to  it.  If  no  objection  is  raised  to  the  evi- 
dence, the  parties  acquiesce  in  the  judgment,  and  it  will  not 
be  reversible. 

Williams  v.   Lederer,   18   C.   C.    (X.S.)    515,  517. 

114.  FAILURE  OF  PROOF. 

(a)  When  the  allegation  of  the  claim  or  defense  to  which 
the  proof  is  directed  is  unproved,  not  in  some  particular  or 
particulars  only,  but  in  its  general  scope  and  meaning,  it  shall 
not  be  deemed  a  case  of  variance,  but  a  failure  of  proof. 

Section   11558,   General   Code. 

Dean  v.  Yates,  22   0.  S.   388. 

Stone   V.    Sanders.    IS   C.    C.    (X.S.)    445. 

Railway  v.   Boswell,   7   C   C.    (X.S.)    413,   18  C.   D.   694. 

Ilazzard  v.   Wallace.   5   C.   C.    (X.S.)    653,   17   C.   D.    147. 


147  ISSUE     AND     VARIANCE  §114 

(b)  From  the  cases  on  failure  of  proof,  the  following?  con- 
clusions are  undoubtedly  warranted: 

1.  Tt  is  error  to  admit  over  objection  evidence  substan- 
tially different  from  the  allegations  of  the  petition. 

Thatcher  v.  Heisy,  21  0.  S.   668. 
Hilsinger   v.   Trickett.   S6   0.   S.  2S6. 
Harrison  v.   Spitz,   16   C.   C.    (X.S.)    493. 

2.  Such  evidence  should  be  excluded  until  the  plaintiff  has 

amended  his  petition  and  an  issue  is  made  up. 

Ililsinger  v.   Trickett,   86  0.   S.  2^6. 

Hill   V.    Supervisors,    10   0.    S.   621. 

Fuher  v.   Villwock,   14   C.   C.   389,   6  C.   D.   373. 

Cf.  Ancin  v.  Ksenick,   17   C.  C.    (X.S.)    310. 

3.  When  the  evidence  relates  to  a  cause  of  action  substan- 
tially different  from  the  one  pleaded,  the  petition  may  not  be 
aided  by  the  averments  of  the  answer. 

nilsinfrer  v.  Trickett,   86   0.   S.   286. 

Cf.  Beetz  v.  Strobel,  6  0.   D.    143,  4  X.  P.   ICG. 

4.  "WTiere  the  petition  sets  up  one  cause  of  action,  and  the 
evidence  shows  another,  it  is  not  an  abuse  of  discretion  to 
refuse  leave  to  amend  on  any  terms.  And  the  dismissal  of 
such  petition  will  not  be  a  bar  to  another  action  on  a  petition 
stating  the  facts  correctly. 

Fuher  V.  Vilhvock.  14  C.  C.  380,  6  C.  T).  373. 
See  Harrison   v.   Spitz,   16   C.   C.    (X.S.)    493. 

5.  If  the  amended  petition  sets  up  the  same  cause  of 
action  as  the  original  petition,  the  statute  ceased  to  run  at  the 
filing  of  the  original  petition. 

Kirchner  v.   Smith.  7  C.  C.    (X.S.)    22,  IS  C.  D.  45. 
Ilailroad  v.   Gibson,  41   0.   S.   145. 

G.  But  if  the  amended  petition  sets  up  a  new  cause  of 
action  already  barred  by  the  statute,  its  filing  does  not  relate 
back  to  the  original  petition. 

Dflaware  Co.  v.  .Andrews,  IS  O.  S.  49. 

Hills   V.   Ludwig,  46   0.   S.   373. 

See  Bates  Pleading,  pp.  2045-2048. 

(c)  AYherc  an  essential  fact  is  in  issue,  the  fact  that  it 
was  assumed  on  one  side  and  not  denied  by  the  otlici-.  (luri;"jr 
the  trial,  does  not  take  llic  i)lace  of  pi-oof.  pari  iculai-Iy  wli,"  •» 


§115  METZLER'S   OHIO    TRIAL    EVIDENCE  148 

the  trial-judge  directed  attention  to  this  defect  in  the  proof 
by  sustaining  an  objection  to  a  question  on  the  ground  that 
such  proof  was  lacking. 

Lieblang  v.   Railway.   4   C.   C.    (N.S.)    Hlfi,   16  C.  D.  30. 

115.  VARIANCE  AS  TO  IMMATERIAL  ALLEGATIONS. 

(a)  The  material  allegations  or  those  which  could  not  be 

stricken  out  Avithout  leaving  the  pleading  insufficient,  must  be 

proved.    The  substance  of  the  issue  must  be  proved  as  alleged; 

and  all  immaterial  averments  may  be  disregarded. 

Gaines  v.  Tnsiiranop  Co..  2S  0.   S.  418. 

Section    11330,   General    Code. 

Piatt  V.   Longworth,  27   0.   S.    159,   200. 

(b)  To  constitute  a  variance  between  the  allegations  and 
the  proofs,  the  difference  must  be  as  to  the  substantial  ele- 
ments of  the  case,  and  not  as  to  the  legal  conclusions  from 
the  facts  drawn  by  the  pleader. 

Piatt  V.  Longworth,  27  0.  S.  159. 

(c)  In  an  action  on  a  verbal  contract,  where  the  petition 
specially  alleges  all  the  material  ])rovisions  thereof,  and  as 
grounds  for  a  recovery  avers  breaches  of  them,  it  is  only  nec- 
essary to  prove  as  alleged  such  of  said  allegations  as  will 
entitle  the  plaintiff  to  a  recovery.  A  failure  of  proof  or  a 
variance  not  prejudicial  to  the  defendant,  as  to  other  provi- 
sions of  the  contract  not  essential  to  a  recovery  is  not  such  a 
variance  as  M'ill  defeat  the  plaintiff's  action. 

Gaines  v.  Insurance  Co..  28  0.  S.  418. 
See  also  Nolte  v.  Hill,  36  0.  S.   186,   189. 

(d)  "WTiere,  in  an  action  for  damages  for  breach  of  a 
Avarranty  in  the  sale  of  chattel  property,  the  petition  also 
alleges  that  the  defendant  knew  the  warranty  to  be  false,  the 
plaintiff  may,  upon  proof  of  the  warranty  and  its  breach,  re- 
cover his  damages,  though  he  fails  to  prove  the  defendant's 
knowledge  of  the  falsity  of  the  warranty. 

Gartner  v.  Corwine,  57  0.  S.  246. 

(o)  Where  an  item  of  account  on  which  suit  is  brought  is 
rot  proved  on  the  trial  to  the  full  extent  claimed  in  the  peti- 


149  ISSUE     AND     VARIANCE  §116 

tion,  but  the  variance  between  the  allegations  and  the  proof  is 
not  such  as  to  mislead  the  defendant  in  regard  to  the  nature 
and  character  of  the  claim  in  controversy,  such  variance  will 
not  prevent  a  recovery,  if  the  facts  proved  show  a  good  cause 
of  action. 

Ralston  v.  Kohl,  30   0.   S.   92. 

(f)  "Where  one  purchases  property  represented  to  be  a 
certain  size  and  extent,  which  representations  prove  to  be  un- 
true, such  purchaser  may  have  a  recovery  on  a  petition  charg- 
ing actual  fraud,  although  the  representations  may  have  been 
innocently  made. 

Douglass  V.  Plotkin,  7  C.  D.  159,  13  C.  C.  461. 
See  Reynolds  v.  Smitz,  9  C.  D.  4S4,   IS  C.  C.  84. 

(g)  The  fact  that  a  petition  sets  forth  acts  which  consti- 
tute negligent  conduct  and  denominates  them  as  wilful  con- 
duct, and  alleges  that  the  injury  of  which  plaintiff  complains 
was  intentionally  committed,  while  the  evidence  shows  that  it 
was  not  committed  intentionally  but  negligently,  does  nqt  con- 
stitute such  a  variance  between  the  pleading  and  proof  as  to 
be  prejudicial  to  the  defendant. 

Griffin  v.  Railway,  21  C.  C.  547,  11   CD.  749. 

116.  RULE  APPLIED  TO  ANSWERS. 

(a)  It  is  a  general  rule  that  a  defendant  who  makes  a 
general  denial  must  adduce  evidence  that  disproves,  or  is  in- 
consistent with  the  allegations  of  the  petition.  When  the 
defendant  relies  on  evidence  of  some  fact  occurring  afterward, 
which  avoids  or  discharges  the  cause  of  action  alleged  in  the 
petition,  such  as  payment  or  satisfaction,  he  will  not  be  per- 
mitted to  introduce  his  evidence  under  a  general  denial.  In 
other  words,  an  answer  by  way  of  denial  raises  an  issue  only 
on  the  facts  stated  in  the  petition ;  if  the  defendant  desires  to 
introduce  a  new  issue,  he  must  plead  the  new  matter.  Hence, 
a  defendant  who  can  not  truthfully  deny  the  facts  alleged  in 
the  petition,  but  is  able  to  show  new  matter  in  avoidance, 
should  set  up  the  new  matter  on  which  he  relies;  otherwise 
his  evidence  will  be  excluded. 

Powers  V.  Armstrong,  36  0.  S.  357. 

Piatt  V.  Schribner,  18  C.  C.  452,  9  C.  D.  771. 

Hauaer  v.  Metzger,  1  C.  S.  C.  R.  164. 


§117  METZLER'S   OHIO   TRIAL   EVIDENCE  150 

(b)  However,  when  a  defense  in  order  to  be  available 
should  be  pleaded  in  the  answer  but  this  is  not  done,  and  evi- 
dence is  introduced  on  the  subject  without  objection  and  sub- 
mitted to  the  jury,  the  absence  of  such  defense  from  the 
answer  is  immaterial. 

Eihlert  v.  Gommoll,  13  C.  D.  586,  3  C.  C.    (N".S.)    345. 
Penn.  Co.   v.   Yoder,  15  C.  D.   32,  1   C.   C.    (N.S.)    283. 
Harris  v.  Wallace  Co.,  84  0.  S.   104,  108. 

(c)  And  where  the  trial  is  conducted  as  if  the  answer  con- 
tained a  general  denial,  the  court  may  allow  the  defendant  to 
amend  under  Section  11363  of  the  General  Code,  after  trial  by 
inserting  a  general  denial  if  justice  requires  it. 

Hodges  V.  Taft,  IG  C.  C.  (X.S.)    1,  25  C.  D.  27. 

(d)  "Where  a  case  is  tried  upon  the  theory  that  the  an- 
swer presents  an  issue  which  in  reality  is  averred  as  a  mere 
conclusion  of  law,  a  court  will  consider  the  pleadings  as  pre- 
senting that  issue,  and  allow  amendments  according  to  the 
proof. 

Schnitzer  v.  Cole,  16  C.  D.  387,  4  C.  C.    (X.S.)    319. 
Cf.  Pelton  V.  Bemis,  44  0.  S.  51,  58. 

(e)  Where  an  answer  fails  from  a  technical  point  of  view 
to  set  up  novation,  but  the  case  was  tried  on  that  theory,  and 
there  was  evidence  supporting  such  a  theory,  it  is  not  revers- 
ible error  for  the  court  in  its  charge  to  the  jury  to  construe 
the  answer  as  setting  up  such  a  defense. 

Jarmuscli  v.  Steel  Co.,  3  C.  C.   (N.S.)    1,  13  C.  D.  122. 

117.  RULE  APPLIED  TO  REPLIES. 

(a)  As  the  reply  to  new  matter  in  the  answer  may  contain 
new  matter  not  inconsistent  with  the  petition,  such  new  mat- 
ter is  not  admissible  under  a  mere  denial.  So  if  an  answer 
sets  up  new  matter,  and  the  plaintiff  relies  on  a  former  adju 
dieation  thereof,  his  reply  must  plead  the  former  judgment. 
It  is  not  admissible  under  a  denial. 

Fanning  v.   Insurance  Co.,  37  O.  S.  344. 

(b)  If  no  reply  is  filed  to  an  answer  of  new  matter  con- 
stituting a  defense,  but  the  cause  is  tried  without  objection  as 
though  such  allegations  had  been  denied,  a  demand  for  judg- 


151  ISSUE    AND    VARIANCE  §117 

ment  on  the  pleadings  after  each  party  has  introduced  his 
evidence  is  too  late. 

Lovell   V.   Wentworth,    39   0.    S.    614. 

Moorman  v.  Fox,  9  0.  D.  63S,  7   X.  P.  45. 

Hudson  V.  Voight,  9  C.  D.  35,  15  C.  C.  391. 

(c)  Where  the  defense  is  not  denied  by  the  reply,  and  the 

case  proceeds  as  if  it  were  denied,  and  without  objection  until 

the  question  is  raised  in  the  supreme  court,  the  judgment  will 

not  be  reversed  because  there  was  no  denial  in  the  reply. 

Woodward  v.  Sloan,  27  0.  S.  592. 

Van  Camp  v.  Chenot,  20  C.  C.  708,  10  C.  D.  819. 

(d)  Failure  to  file  a  reply  to  an  allegation  of  contributory 
negligence  pleaded  in  the  answer  does  not  entitle  the  defend- 
ant to  a  judgment  on  the  pleadings,  Avhen  his  demand  therefor 
was  not  made  until  after  both  parties  had  submitted  their 
evidence,  and  the  case  had  been  tried  as  though  the  allegation 
of  new  matter  in  the  answer  had  been  denied. 

Traction  Co.  v.  Dorenkemper,  13  C.  C.   (N.S.)   97,  22  C.  D.  239. 
Gas  Co.  V.  Johnston,   76  0.   S.   119,   123. 

(e)  It  is  not  reversible  error  to  permit  the  filing  of  a 
reply  when  testimony  in  rebuttal  is  being  introduced,  where 
the  case  has  been  tried  without  objection  as  if  reply  had 
been  filed  before  the  trial. 

Railway  v.  McKelvey,  5  C.  D.  561,  12  C.  C.  426. 

(f)  But  where  an  answer  of  new  matter  sets  up  a  good 
defense  and  no  reply  is  filed  thereto,  it  is  error  to  permit 
plaintiff  against  objection  to  prove  that  the  allegations  of  such 
defense  are  untrue  where  the  defendant  has  not  opened  the 
door  by  offering  evidence. 

Maxwell  v.  Griftner,  11  C.  C.  210,  5  C.  D.  323. 


CHAPTER  IX. 

RELEVANCY. 

lis.  Direct    and    indirect   evidence. 

119.  Evidence   on   one   issue. 

120.  Order    of    evidence. 

121.  Legal    relevancy — Outline. 

122.  Genuineness    of   document. 

123.  Introducing    a    fact. 

124.  Explaining   a    fact. 

125.  Supporting  an   inference. 

126.  Rebutting    an    inference. 

127.  Proving    identity. 

128.  Preparation    and    subsequent    conduct. 

129.  Subsequent   repairs. 

130.  Remoteness. 

131.  Similar   occurrences. 

132.  Other   fires. 

133.  Other   offenses. 

134.  Financial    ability. 

135.  Custom   or  habit. 

118.  DIRECT  AND  INDIRECT  EVIDENCE. 

(a)  Best,  in  his  work  on  the  ''Law  of  Evidence,"  stated  in 
substance,  that  when  the  truth  in  regard  to  a  question  of  alleged 
fact  can  not  be  ascertained  by  means  of  inspection,  as  when 
there  is  presented  to  the  senses  a  visible  object,  there  are  but 
two  ways  of  arriving  at  the  truth:  (1)  by  evidence,  affirma- 
tive or  negative,  of  the  alleged  fact  itself;  and  (2)  by  evi- 
dence of  facts  collateral  to  such  alleged  fact,  but  so  related  to 
it  that  the  truth  may  be  reasonably  inferred.  Such  collateral 
facts  are  evidential  facts ;  the  fact  sought  to  be  proved  is  the 
ultimate  fact. 

(b)  Then  all  evidence,  except  that  obtained  by  inspection, 
is  in  its  nature  either  direct  or  indirect.  Evidence  is  direct 
when  the  alleged  ultimate  fact  itself  is  affirmed  or  contro- 
verted.    Evidence  is  indirect,  or  circumstantial,  when  there  is 

adduced  evidence  of  facts  collateral  to  the  ultimate  fact,  but 

152 


153  RELEVANCY  §118 

SO  related  thereto  as  to  tend  by  inference  to  establish  or  dis- 
prove it.  The  first  test  of  the  admissibility  of  indirect  evidence 
is  that  the  evidential  facts  must  be  probative  of,  or  logically 
relevant  to,  some  fact  in  issue. 

See  T?rpwiTi£r  Co.  v.  Banor.  HO  0.  R.  560. 
Wilson  V.   Barkalow,    11    ( ».   S.  470.   474. 
Bill  V.  Brewster,  44  O.  S.  fiDO.  6!)7. 

(c)  In  adducing  either  direct  or  indirect  evidence,  the 
facts  proved  are  attested  in  the  same  manner;  and  with  one 
kind  as  well  as  the  other,  belief  rests  upon  our  faith  in  human 
veracity.  The  principal  distinction  is  that  direct  evidence 
proves  or  disproves  the  ultimate  fact  if  the  evidence  itself  is 
true;  Avhereas,  circumstantial  evidence,  though  true,  does  not 
of  itself  establish  or  disprove  the  ultimate  fact,  but  affords 
only  an  inference  of  its  existence  or  non-existence. 

See    Cal.    Code   of  Civ.   Proc   Sec?.    1831    and    1R32. 

(d)  The  collateral  facts  adduced  may  or  maj^  not  satis- 
factorily prove  the  ultimate  fact.  As  to  the  conclusion,  opin- 
ion will  be  divided  when  more  than  one  inference  may  be 
drawn.  But  when  every  inference  points  to  the  truth  of  the 
ultimate  fact,  and  no  collateral  fact  can  be  explained  on  any 
other  supposition,  the  proof  will  be  satisfactory — indeed,  al- 
most conclusive.  Indirect  evidence,  then,  proves  the  ultimate 
fact  when  it  excludes  every  other  possible  inference;  and  the 
nearer  such  evidence  approaches  this  degree  of  conclusiveness, 
the  more  satisfactory  is  the  proof. 

(e)  Circumstantial  evidence  is  often  the  most  convincing. 
It  is  difficult  to  fabricate  the  connected  links  in  a  chain  of 
circumstances  so  as  to  preserve  the  semblance  of  truth ;  but 
it  is  very  easy,  where  perjury  is  intended,  to  fabricate  positive 
facts.  When  the  circumstances  detailed  are  real  and  natural, 
they  Avill  correspond  with  each  other;  when  they  are  incon- 
sistent with  each  other  or  irreconcilable  Avith  admitted  facts, 
there  results  a  plain  and  almost  certain  inference  that  artifice 
has  been  resorted  to,  and  that  the  tale  is  not  true. 

State  V.  Turner,  Wright  20.  28. 

(f)  It  can  hardly  be  deemed  necessary  to  go  into  any 
course  of  reasoning  to  prove  that  circumstantial   evidence  is 


§118  METZLER'S   OHIO    TRIAL    EVIDENCE  154 

allowed  to  prevail,  even  to  the  convicting  of  an  offender.  It 
is  essential  to  the  well-being,  if  not  to  the  very  existence,  of 
civil  society  that  it  should  be  understood  that  the  secrecy  with 
which  crimes  are  committed  will  not  insure  impunity  to  the 
offender.  Such  evidence  is  allowable  because  it  is,  in  its  own 
nature,  capable  of  producing  the  highest  degree  of  moral  cer- 
tainty. Crimes  of  any  magnitude  are  rarely  committed  with- 
out affording  vestiges  by  which  the  offender  may  be  traced; 
and  very  often  the  means  he  adopts  for  his  security  turn  out 
to  be  the  most  cogent  arguments  of  his  guilt. 
Hess  V.  State,  5  0.  S.  5,  9. 

(g)  However,  where  a  criminal  charge  is  to  be  proved  by 
circumstantial  evidence,  the  evidence  ought  to  be  not  only 
consistent  with  the  prisoner's  guilt,  but  inconsistent  with  any 
other  rational  conclusion.  A  careful  judge  will  always  in- 
struct the  jury  that  where  the  circumstances  are  reconcilable 
upon  the  theory  of  the  innocence  of  the  accused,  they  are 
bound  to  so  treat  them  ;  and  that  it  is  only  when  the  facts 
and  circumstances  are  irreconcilable  Avith  his  innocence  that 
he  can  be  convicted.  In  instructing  the  jury  and  in  defining 
circumstantial  evidence,  it  is  not  error  for  the  trial-judge  to 
use  illustrations  drawn  from  common  experience  or  based 
Upon  familiar  events  in  every-day  life. 

Fastbinder  v.  State,  42  0.  S.  341,  345. 
Moore  v.  State,  2  O.  S.  500,  507. 
Murray  v.   State,   23   C.   C.    (X.S.)    508. 

(h)  Under  proper  instructions  juries  are  allowed  in  civil 
cases  to  act  upon  probable  and  inferential,  as  well  as  direct 
and  positive  evidence ;  they  may  look  to  all  the  facts  and  cir- 
cumstances of  the  case,  so  as  to  enable  them  to  make  the  most 
probable  estimate  which  the  nature  of  the  case  will  permit. 
A  wide  range  of  inquiry  is  usually  permitted  where  the  issues 
relate  to  subjects  which  must  be  largely  determined  upon  cir- 
cumstantial evidence,  such  as  fraud. 

Burckhardt  v.  Burckliardt,   42  0.   S.   474.   400. 

Koch  V.  Meyers,  7  O.   App.  306.  20  O.  C.   A.    142,   30  C.  D.  430. 

(i)  When  circumstantial  evidence  is  relied  upon  to  prove 
a  fact,  the  circumstances  most  be  proved  and  not  be  inferred. 
The  law  requires  that  the  circumstances  sliall   be   proved  by 


155  RELEVANCY  S  119 

direct  evidence;  it  ioi-bids  the  building  of  inference  upon 
inference.  One  inference  can  not  be  drawn  from  another 
inference. 

Farrer  v.  Rtato.  2  0.  R.  54,  72. 

Feiiger   v.   Fenger,   7    Bull.   :5()4,   8   0.   D.   R.   407. 

Barr   v.   Cliapinan,   30   Bull.   264,   11    0.   D.   R.   862. 

(j)  Adultery  may  be  inferred  from  occupancy  of  the 
same  room  at  night.  But  a  couple  coming  from  a  house  early 
in  the  liiorning,  and  asking  the  Avitness  to  say  nothing,  does 
not  raise  the  inference  that  they  had  stayed  in  the  same  room 
so  that  adultery  could  be  presumed :  for  presumptions  of  fact 
from  other  presumptions  of  fact  are  not  allowed. 
Fenger  v.   Fenger,   7   Rull.   304,   8   0.   D.   "R.   407. 

119.  EVIDENCE  ON  ONE  ISSUE. 

(a)  It  is  no  objection  to  a  particular  item  of  evidence, 
that,  unsustained  by  other  proof,  it  is  insufficient  to  entitle  a 
party  to  recover.  If  it  has  a  tendency  to  support  the  issue,  it 
is  relevant.  It  is  not  essential  to  the  admissibility  of  evidence 
that  it  prove  the  entire  issue. 

Watson   V.   Brown.    14.  Oli.   473.   470. 
Hummel   v.  State,    17  0.  S.  028. 
Meek   v.  Pemi.   Co.,   38  O.   S.  632. 

(b)  There  is  no  rule  of  evidence  which  requires  that  what 
is  offered  should  be  relevant  to  every  issue  in  the  case,  it  may 
be  relevant  to  one,  and  irrelevant  to  another.  If  admissible 
for  any  purpose,  it  should  be  allowed  to  go  to  the  jury  under 
proper  instructions. 

Brewing  Co.  v.   Bauer,   50   O.   S.   .'SfiO.   .'i64. 

Penn.  Co.  v.  Mahoney,  22   C.   C.  460,    12   C.   D.   366. 

State  V.  Davis,  00  0.  S.  100. 

(c)  It  is  not  necessary  that  evidence  offered  be  directly 
relevant  to  the  principal  issue  made  by  the  pleadings.  The 
rule  of  relevancy  is  satisfied  if  the  evidence  is  relevant  to  the 
incidental  issues  made  by  the  proof.  It  is  sometimes  objected 
that  this  i)res('nts  new  and  collateral  issues  of  which  the  ad- 
verse party  has  no  notice.  In  a  certain  sense  every  item  of 
evidence  material   1o  the  main   issue   introduces  a   new  issue; 


'^  120  WETZLER-S    OHIO    TRIAL    EVIDENCE  156 

that  is,  it  calls  for  a  reply.     In  no  other  sense  does  it  make  a 
new  issue. 

Brewing  Co.  v.  Bauer,  50  0.  S.  560,  567. 

(d)  It  is  probably  the  general  experience  in  our  trial- 
courts  that  at  the  opening  of  the  trial  the  parties  are  confined 
rather  strictly  to  the  issues  of  fact  made  by  the  pleadings; 
but  that  as  the  trial  proceeds,  other  issues  arise  upon  the  evi- 
dence which  are  sometimes  called  questions  of  fact  to  distin- 
guish them  from  the  issues  of  fact  made  by  the  pleadings. 
During  the  closing  stages  of  the  trial,  the  evidence  is  often 
very  largely  directed  to  such  questions  of  fact. 

12G.  ORDER  OF  EVIDEMCE. 

(a)  Evidence  relating  to  different  points  of  fact  may  be 

so  blended  in  the  same  transaction  as  to  authorize  giving  it 

in  mass.     It  is  not  essential  that  the  facts  to  be  proved  should 

be  introduced  in  any  given  order;  but  the  party  before   the 

close  of  his  case  must  be  prepared  to  show  each  link  in  the 

chain  of  his  evidence. 

Allen  V.  Parish,  .3  Oli.   107. 

Carroll   v.   Olmstead,    16   Oh.   251,   7. 

Moran  v.   State,    11   C.  C.   464,  5   C.  D.  234. 

(b)  In  Ohio,  the  practice  is  to  permit  a  party  to  intro- 
duce all  the  evidence  he  can  produce  that  is  pertinent  to  the 
issue  on  trial.  The  order  of  its  introduction  is  determined  by 
the  court  in  the  exercise  of  a  sound  discretion.  Courts  do  not 
generally  interfere  with  the  order,  but  leave  the  counsel  man- 
aging a  cause  pursue  their  own  order  in  its  production. 

Shahan  v.   Swan,   48   0.   S.  25,   33. 

Limerick  v.  State,  14  C.  C.  207,  7  C.  D.  664. 

Wilson  V.  Barkalow,  11  0.  S.  470,  3. 

(c)  In  proving  a  lost  deed,  the  natural  order  is  to  prove 
the  execution  and  loss  before  proving  its  contents.  But  it  is 
often  impossible  to  observe  such  a  rule ;  for  the  evidence  on 
two  or  more  points  may  be  so  blended  in  the  same  transaction 
as  to  be  inseparable.     It  may  then  be  offered  in  r-iass. 

Allen  V.  Parish,  3  Oh.   107,  8. 


157  RELEVANCY  §  120 

(d)  Upon  the  trial  of  an  action  to  enforce  the  specific 
performance  of  a  parol  contract  to  convey  land,  or  an  interest 
therein,  it  is  not  error  to  admit  parol  evidence  of  the  terms 
of  the  contract  before  proof  of  its  part  performance  has  been 
made. 

Shahan  v.  Swan,  4S  0.   S.  25. 

(e)  In  the  trial  of  a  bastardy  case,  failure  to  read,  before 
complainant  rests,  the  transcript  of  the  evidence  given  by  the 
complainant  before  the  magistrate,  does  not  constitute  pre- 
judicial error  where  the  reading  of  the  transcript  occurred 
before  the  defendant  was  placed  on  the  witness-stand. 

Campbell   v.  State,    l.j   C.   C.    (N.S.)    574,   26   C.   D.   171. 

(f)  However,  evidence  offered  out  of  order  is  sometimes 
excluded.  "Where  a  condition  precedent  to  the  right  of  incor- 
poration is  prescribed  by  law,  it  is  not  error  to  reject  as  evi- 
dencethe  certificate  of  incorporation  in  form  as  prescribed  by 
the  statute,  when  the  issue  is  nul  tiel  corporation  and  there  is 
no  evidence  tending  to  shoAV  that  the  condition  had  been 
fulfilled. 

Navigation  Co.  v.  Eagle,  29  0.  S.  238, 

(g)  As  a  general  rule,  the  corpus  delicti  must  be  proved 
before  any  evidence  is  offered  as  to  the  guilt  of  the  accused. 
But  in  a  prosecution  for  arson  a  judgment  of  guilty  will  not 
be  reversed  because  of  failure  to  establish  the  corpus  delicti 
before  evidence  tending  to  incriminate  the  defendant  was 
introduced,  where  the  burning  of  the  property  was  not  dis- 
1  ■'-'>''',  and  the  same  evidence  that  established  criminal  agency 
;  'so  bore  upon  the  question  of  the  guilt  of  the  accused. 

State  V.  Pereles,  12  0.  D.  642. 

Kohn   V.  State,  14   C.  C.    (X.S.)   31,  23  C.  D.  417. 

(h)  Where  the  corpus  delicti  in  bribery  can  not  be  directly 
established,  except  by  gradual  building  up  by  proof  of  a  gen- 
eral conspiracy  tending  to  establish  it.  the  court  may  permit 
such  proof  of  the  conspiracy  in  the  order  of  its  alleged  steps 
as  tending  to  prove  the  corpus  delicti. 

State  V.  Rhodes,  15  X.  P.    fX.S.)    117. 


§122  METZLER'S   OHIO    TRIAL    EVIDENCE  158 

(i)  Sometimes  evidence  is  admitted  on  the  promise  of  a 
party  to  show  its  connection  later.  But  the  rule  should  be 
limited  to  cases  where  the  objection  to  the  evidence  relates 
merely  to  its  relevancy  to  the  issue,  and  not  extended  to  cases 
where  the  objection  is  its  legal  incompetency  to  prove  the 
fact,  such  as  an  objection  to  a  hearsay  statement.  In  the  one 
case  there  is  a  fact  proved  which  subsequent  developments 
may  show  to  be  relevant  to  the  issue;  but  in  the  other,  there 
has  been  no  legal  proof  of  the  fact  itself,  and  when  made 
relevant,  it  would  still  be  incompetent. 

Wilson  V.  Barkalow,  11  0.  P.  470,  3. 

Limerick  v.  State,   14  C.  C.  207,  7   C.  D.  664,  7. 

121.  LEGAL  RELEVANCY— OUTLINE. 

(a)  All  relevant  facts  which  are  not  excluded  by  any  rule 
are  admissible  for  any  of  the  following  purposes  in  so  far  as 
they  aid  in  determining  the  issues: 

(1)  To  show  that  any  document  is  genuine  or  otherwise. 

(2)  To  introduce   or   explain    a   fact  in   issue   or  relevant 

thereto. 

(3)  To  support  an  inference  suggested  by  any  such  fact. 

(4)  To  rebut  an  inference  suggested  by  any  such  fact. 

(5)  To  prove  or  disprove  the  identity  of  a  person  when 
in  issue  or  relevant  thereto. 

See  Stephen's  Digest  of  Evidence,  Art.  9. 

122.  GENUINENESS  OF  DOCUMENT. 

(a)  In  a  criminal  prosecution  for  forging  a  will,  the  truth 
or  falsity  of  matters  recited  therein  may  be  shown  as  bearing 
upon  the  question  of  the  genuineness  of  the  instrument.  And 
where  these  recitals  are  of  the  feelings  of  the  claimed  testate, 
her  acts  and  declarations  occurring  shortly  before  and  after 
the  date  of  the  alleged  forgery  may  be  introduced  to  show 
that  her  feelings  were  not  those  recited  in  the  alleged  will. 

Corbett  v.  State,  3  C.  D.  7P,  5  C.  C.  155. 

Cf.  Breck  v.  State,  2  C.  D.  477.  4  C.  C.   160. 

Gurlev  v.  Armentraut,  6  C.   C.    (X.S.)    156,   17   C.  D.  199. 


159  RELEVANCY  §  124 

123.  INTRODUCING  A  FACT. 

(a)  In  an  action  against  a  railroad  company  for  the  value 
of  property  destroyed  by  fire,  not  only  questions  leading  up 
to  show  that  such  property  had  a  market  value  are  competent, 
but  also  questions  which  show  what  that  value  is. 

Railway  v.  McKelvey,  12  C.  C.  426,  5  C.  D.  561. 

(b)  In  an  action  to  determine  the  validity  of  a  contract 
between  two  telephone  companies,  evidence  of  the  condition 
of  the  telephone  business  within  the  field  in  which  the  com- 
panies were  operating  is  admissible  for  the  purpose  of  shoAV- 
ing  the  tendency  and  effect  of  the  agreement. 

Telephone  Co.  v.  Telephone  Co.,  7  N.  P.    (N.S.)    425,  19  O.  D.  202. 

(c)  On  trial  for  injury  by  a  defective  bridge  giving  way, 
the  history  of  its  prior  repair  and  the  ordinary  construction  of 
such  bridges  is  admissible. 

Railway  Co.  v.  Ellis,  6  C.  D.  304,  13  C.  C.  704. 

124.  EXPLAINING  A  FACT. 

(a)  On  the  trial  of  an  indictment  for  assault  with  intent 
to  commit  a  rape,  evidence  of  the  manner  in  which  the  woman 
was  conducting  herself,  her  physical  condition  as  to  injuries 
and  the  condition  of  her  wearing  apparel  when  found  shortly 
after  the  alleged  commission  of  the  offense,  is  admissible. 

Hornbeck  v.  State.  35  O.  R.  277. 

(b)  In  an  action  against  a  decedent's  estate  to  recover 
for  the  value  of  services  rendered  under  employment  as  house- 
keeper for  the  deceased  in  his  lifetime,  it  was  held  competent 
for  the  plaintiff  to  show  the  condition  of  the  house  and  prem- 
ises where  she  rendered  her  services  during  her  employment 
for  the  purpose  of  aiding  the  jury  in  determining  the  value 
of  such  services. 

Berrv  v.  Collins,  0  C.  C.  656.  6  C.  11.  507. 

Cf.  Shailcr  V.  Corcoran,   11   C.  D.  590,  21   C.  C.  630. 

(c)  Where  a  letter  of  a  vendor  contained  a  statement  that 
the  commodity  sold  was  not  merchantable,  whicli  statement 
was  corrected  in  a  subse(|uent  letter,  also  properly  in  evidence, 
it  was  held  that  the  reception  of  evidence  offered  by  the  seller 


§  125  METZLER'S   OHIO   TRIAL    EVIDENCE  160 

to  show  on  what  information  the  first  letter  was  written  af- 
forded no  ground  for  reversal  of  the  judgment, 

Cullen  V.  Bimm,  37  0.  S.  236. 

(d)  Where  defendant,  on  cross-examination  of  plaintiff's 
witness,  shows  the  general  nature  of  the  business  in  which  he 
is  engaged,  it  is  competent  for  plaintiff,  on  re-examination  to 
inquire  into  the  particulars  of  his  business  so  far  as  it  reflects 
upon  the  issues. 

Bean  v.  Green,  33  0.  S.  444. 


125.  SUPPORTING  AN  INFERENCE. 

(a)  It  is  competent  to  prove  that  a  dog  had  acquired  a 
habit  of  attacking  sheep  in  support  of  a  disputed  allegation 
that  he  attacked  and  injured  sheep  on  a  particular  occasion. 

Rumbaugh  v.  McCormick,  80  0.  S.  211,  217. 

Cf.  Hartman   v.  Railway,  7   0.  App.  296,  28  0.  C.  A.    119,   30  C.  D.  20. 

(b)  In  an  action  to  recover  for  injuries  by  collision  with 
a  train  at  a  crossing,  where  the  evidence  tends  to  show  that 
plaintiff  did  not  exercise  proper  care,  it  is  competent  for  him 
to  show  that  there  was  no  signboard,  in  order  to  support  his 
contention  that  he  used  due  care,  even  though  the  want  of 
such  signboard  is  not  alleged  as  a  ground  of  recovery. 

Railroad  v.  Whitacre,   35   0.   S.   627. 

(c)  Where  a  contract  of  guaranty  is  made  on  considera- 
tion to  extend  time,  it  is  error  to  exclude  the  creditor's  testi- 
mony that  he  made  no  demand  until  after  the  expiration  of 
the  extended  time,  as  tending  to  prove  that  he  agreed  to  and 
did  extend  the  time. 

Paint  Co.  V.  Swihart,  16  C.  C.   (N.S.)    16,  27  C.  D.  283. 

(d)  In  an  action  for  injuries  to  an  infant  employe,  evi- 
dence that  other  factories  employed  children  of  the  age  of 
plaintiff  is"  competent  for  the  defense,  when  plaintiff  alleges 
that  defendant  was  negligent  in  employing  one  of  tender 
years;  for  it  shows  that  defendant  exercised  the  care  ordi- 
narily exercised  by  others  under  the  same  conditions. 

Hoppe  V.  Parmalee,  11  CD.  24,  20  C.  C.  303. 


161  RELEVANCY  §  126 

(e)  "Where  the  evidence  is  conflicting,  whether  S  had 
agreed  to  give  his  sister  T  a  home  for  life  if  she  would  act  as 
his  housekeeper,  or  only  so  long  as  they  could  agree,  S  may 
show  as  tending  to  support  his  claim,  that  T  was  of  a  dis- 
agreeable temper,  and  that  none  of  her  relatives  could  live 
with  her,  and  that  he  kncAv  these  facts, 

Tompkins   v.   Starr.   41    O.   S.   .105. 

(f)  In  an  action  to  recover  the  amount  due  on  a  contract 
for  work,  evidence  of  the  value  of  such  work  is  not  admissible 
in  chief.  But  when  an  issue  arises  upon  the  proofs  different 
from  that  made  by  the  pleadings,  in  which  the  only  conten- 
tion is  as  to  the  price  agreed  upon,  the  plaintiff  may  prove 
that  the  work  was  worth  more  than  he  claimed  the  contract 
price  to  be, 

Allison  V.  Horning,  22  0.  S.  138. 

Dickey  v.  Greenleaf,  3S  0.  S.  593. 

Schmidt  V.   Turner,   5    C.   C.    (X.S.)    492,    17   C.   D.   327. 

(g-)  In  a  will  contest,  evidence  of  the  faithfulness  of  a 
beneficiary  to  the  testator  is  competent,  because  it  has  a  bear- 
ing upon  the  question  of  the  reasonableness  of  the  will  as 
executed, 

Moore  v.  Caldwell,  6  C.  C.   (N.S.)    4^4,  17  C.  D.  449. 

Cf.  Delfs  V.  Yeager,   16   C.   C.    (N.S.)    433. 

(h)  When  the  defense  of  the  accused  is  insanity,  an  adju- 
dication of  insanity  made  four  years  before  is  admissible.  And 
when  the  defense  in  a  murder  case  is  that  the  deceased  took 
his  own  life,  it  may  be  shown  that  six  years  before  he  was 
melancholy  and  threatened  to  commit  suicide.  But  in  a  will 
contest,  where  there  is  no  evidence  of  testator's  insanity,  tiio 
insanity  of  testator's  father  can  not  be  shown, 

Wheeler  v.   State,   34  0.  S.   304. 

Blackburn  v.   State,   23   O.   S.    146. 

Cf.  Brewing  Co.  v.  Opp,  9  C.  D.  516,  17  C.  C.  465. 

Whitney  v.  Both,  45   Bull.   374. 

126.   REBUTTING  AN  INFERENCE. 

(a)  Evidence  that  it  was  the  custom  of  a  railroad  com- 
pany to  give  warning  of  the  approach  of  trains  or  engines  at 
a  point  where  employes  were  obliged  to  cross  in  attending  to 

■K/rjTT-zr  k-r's    t«i\i     ttv ft 


§126  METZLER'G    OHIO    TRIAL    EVIDENCE  162 

their  duties,  is  competent  to  rebut  a  possible  inference  of  con- 
tributory  negligence ;   such   custom   might   come   to   have   the 
force  of  a  rule  of  the  company  requiring  such  warning. 
Penn.   Co.  v.  Mahoncy,  22  C.  C.  469,   12  C.  D.  366. 

(b)  In  an  action  by  a  subcontractor  as  payee  of  an  order 
by  the  contractor  on  the  owner,  which  it  is  claimed  the  owner 
accepted  verbally,  the  owner  may  show  that  he  only  owed  the 
contractor  a  lesser  sum,  for  this  tends  to  rebut  consideration 
and  disprove  acceptance. 

Alberts  v.  Moller,  8  A.  L.  "R.  48S,  6  0.  D.  R.  864. 

(c)  When  the  defendant  undertakes  to  show  that  the  insu- 
lator it  is  using  is  the  best  in  the  market,  plaintiff  may  rebut 
such  evidence  by  comparing  the  insulator  used  with  others  in 
use;  and  the  opinion  of  an  expert  Avitness  for  the  plaintiff  that 
a  particular  make  of  insulator  used  by  the  defendant  is  not  a 
safe  one,  is  competent. 

Telephone  Co.  v.  Jackson,  4  C.  C.    (X.S.)    386,  16  C.  D.  89. 

(d)  Undue  influence  by  a  son,  to  whom  a  large  share  of 
the  estate  was  devised  by  his  father,  being  charged,  the  plain- 
tiff may  show  that  a  former  will  had  given  this  son  a  much 
smaller  share.  To  rebut  this,  the  son  may  show  that  before 
this  his  mother  had  made  a  will  leaving  him  nothing,  and  that 
his  father  knew  of  this  and  presumably  intended  to  repair  the 
injustice. 

Varner  v.  Varner,  9  C.  D.  273,  16  C.  C.  386. 

(e)  If  a  witness  as  to  the  value  of  land  is  asked  on  cross- 
examination  as  to  particular  sales  in  the  vicinity  at  a  very 
low  figure,  he  may  on  redirect  examination  be  asked  if  he 
knows  as  to  other  particular  sales  at  a  high  figure. 

Eailway  v.  Sinning,  6  C.  D.  753,  17  C.  C.  649. 

(f)  On  the  separate  trial  of  one  of  two  jointly  indicted 
for  burglary,  the  state  may  give  evidence  tending  to  show 
that  the  one  not  on  trial  was  present  and  participated  in  the 
crime,  and  that  the  two  were  consorting  and  consulting  before 
the  crime.  But  if  such  evidence  is  given,  the  accused  has 
the  right  to  show  that  such  other  could  not  have  participated, 
as  by  showing  an  alibi  as  to  him. 

Davis  V.  Ptatp,  19  O.  R.  217. 


]63  RELEVANCY  §126 

(g)  Where  the  defendant's  machine  is  viewed  by  the  jury 
and  fonnd  in  order,  and  the  defendant's  evidence  is  that  it 
has  not  been  changed  or  repaired  since  the  injury,  the  plain- 
tiff may  show  in  rebuttal  that  it  was  defective  at  a  date  long 
after  the  injury. 

Barbour  v.   ^filps,   7   C.  T).  6S2.   14   C.   C.  62fi. 

(h)  Where  evidence  is  given  showing  that  the  deceased 
was  conscious  for  a  while  after  the  shot  was  fired,  the  state 
may  show  in  rebuttal  that  the  wound  would  cause  immediate 
unconsciousness,  though  evidence  to  the  same  effect  wn^^  <jriven 
by  the  state  in  chief. 

Hoover  v.  State,  91  0.  S.  41,  44. 

(i)  And  in  an  action  for  injuries  to  plaintiff  from  being 
struck  by  a  stone  thrown  by  a  blast  in  a  neighboring  quarry, 
evidence  of  previous  instances  of  stones  being  thrown  upon 
his  land  is  competent  to  rebut  the  claim  of  defendant  that 
stones  could  not  be  thrown  so  far. 

Brick  Co.  v.  ChoJTiicki.   14  C.  C.    (X.S.1    rm.  2.3  C  T).  35fi. 

(j)  "Where  defendant  is  prosecuted  for  obstructing  a 
highway  to  the  inconvenience  of  travelers,  he  may  show  that 
travelers  were  not  accustomed  to  travel  that  highway. 

Ingersoll   v.   Herider.    12   Oli.   527. 

» 

(k)  Where  an  administrator  sues  a  druggist  for  selling  to 
deceased  salts  containing  a  poison,  and  the  defense  is  that  the 
poison  was  not  in  the  package  of  salts  when  delivered,  a  per- 
son may  testify  that  salts  that  he  had  purchased  of  defendant 
a  short  time  before  the  purchase  of  decedent  contained  no 
poison. 

Meyer  v.  Flannory,   T^  X.   P.    fX.S.)    .Sfil. 

(1)  Where  a  father  luiving  an  e(]nitablo  right  to  land 
causes  the  deed  to  be  made  to  his  son.  tlie  father's  execntors 
claiming  the  land,  may.  in  order  to  rebut  the  presumption  of 
an  advancement  or  gift.  ])ut  tlic  deed  in  evidence  Avlicroin  the 
son  is  called  trustee. 

Paddock    v.    Adnms,   5f)   O.   ?.   242. 

(m)  Tn  order  to  be  relevant  in  rel)nttal,  evidence  must  lend 
to   explain,   repel,   counteract   or  disprove   facts   given   in   evi- 


§127  METZLER'S    OHIO   TRIAL    EVIDENCE  164 

dence  by  the  other  side.  Evidence  that  accused  violated  the 
law  at  the-  time  charged,  can  not  be  rebutted  by  evidence  that 
lie  did  not  violate  it  every  time  he  had  a  chance. 

State  V.  Linder,  76  0.  S.  463,  465. 

Cf.  Devere  v.  State,  5  C.  C.  509,  3  C.  D.  249. 

Carr    v.    State,    11    C.   D.    353,   21    C.    C.   43. 

127.  PROVING  IDEMTITY. 

(a)  Identity  may  be  proved  by  a  concurrence  of  char- 
acteristics. Identity  of  name  raises  a  presumption  of  identity 
of  person.  Memory  of  personal  appearance  fifty  years  back  is 
too  unreliable  to  be  considered. 

Sperry  v.  Tebbs,  20  Bull.   ISl,   10  0.   D.  R.   318. 

(b)  Where  the  identity  of  a  person  is  in  issue,  it  is  com- 
petent to  introduce  letters  or  receipts  claimed  to  be  in  his 
handwriting,  for  the  purpose  of  comparison  with  other  writ- 
ings admitted  or  clearly  proven  to  have  been  written  by  him; 
and  such  comparison  may  be  made,  and  an  opinion  expressed, 
by  experts  in  handwriting. 

Tell    V.   Brewster.   44   O.    S.   fill. 

Cf.   Earr  v.   C  Iiapnian,  3:)   Bull.  264,   11   O.  D.   R.   FQ2. 

(c)  In  malicious  prosecution  for  having  arrested  plaintiff 
on  a  charge  of  making  threats,  defendant,  in  order  to  show 
probable  cause,  having  offered  an  unsigned  threatening  letter 
written  by  some  one  disappointed  by  a  will,  may  offer  the  will 
in  evidence  as  tending  to  show  that  plaintiff's  condition  satis- 
fied the  terms  of  the  letter,  and  thus  identified  him  as  its 
author. 

John  V.  Bridgman,  27  O.  S.  22,  40. 

(d)  In  a  bastardy  case,  the  child  may  be  shown  to  the 
jury  to  identify  the  defendant  as  the  father  of  the  child  by  its 
resemblance  to  him. 

Crow   V.   Jordon,  49  0.   S.   655. 

(e)  Evidence  that  a  bloodhound  trained  to  follow  human 
tracks,  was  within  twenty-four  hours  after  a  burglary,  put 
upon  the  scent  or  track  of  a  person  at  the  building  burglar- 
ized, and  that  the  dog,  as  if  trailing  or  following  such  track 


165  RELEVANCY  §  128 

or  scent,  Avent  to  the  house  of  defendant  and  stopped  at  his 
door,  is  competent  to  go  to  the  jury  with  other  testimony  as 
a  circumstance  tending  to  connect  him  with  the  crime. 

Stat^  V.  Hall.  3  X.  P.  125,  4  0.  D.  147. 
Cf.  State  V.  Dickerson,  77  0.  S.   34. 

(f)  Evidence  accounting  for  certain  parties  and  for  their 
disappearance  on  the  occasion  of  the  murder  charged  in  the 
indictment,  is  competent  where  so  inextricably  interwoven 
with  the  crime  that  without  it  a  wrong  suspicion  might  arise 
as  to  who  was  the  perpetrator. 

Selvaggio  v.  State,  10  C.  C.    (X.P.)    S?,  2.>  C.  T^.   1.^0. 

(g-)  The  accused  may  prove  an  alibi ;  that  is,  show  that  he 
was  elsewhere  when  the  crime  was  committed.  But  the  de- 
fendant's attempt  to  prove  an  alibi  in  a  criminal  case  is  no 
admission  of  the  body  of  the  crime  charged ;  nor  does  his 
failure  to  prove  the  alibi  necessarily  afford  any  presumption 
that  he  Avas  present  at  the  time  and  place,  when  and  where 
the  crime  is  alleged  to  have  been  committed. 

r.iirn.s  V.  Ptate.  75  O.  S.  407. 
Toler  V.  State,   IG  0.  S.  583. 

(h)  In  a  libel  case,  if  the  publication  is  ambiguous  as  to 
Avho  is  intended,  a  witness  who  knows  the  parties  and  circum- 
stances may  give  his  opinion  as  to  who  is  meant.  And  when 
defendant  claims  that  plaintiff  was  guilt}'  of  provocation  by  a 
prior  publication,  the  defendant  has  a  right  to  ask  what  per- 
sons made  the  publication  ;  and  an  answer  that  plaintiff  was 
not  one  of  them  is  not  proper.  The  persons  should  be  named, 
as  an  answer  might  enable  defendant  to  connect  plaintiff 
therewith. 

McLaufrlilin   v.   Eussell,    17   0!i.   475. 

DeCamp  v.  Archibald,  50  O.  S.  CIS,  620. 

128.   PREPARATION   AND   GUCSECUE>:T  COXD'CCT. 

(a)  When  there  is  a  question  whether  any  act  was  done 
by  any  person,  the  following  facts  are  deemed  to  be  relevant : 
Any  fact  which  constitutes  preparation  for  it,  or-  any  subse- 
quent  conduct   of  such    jjcrson    apparently   inHuenced    by    the 


§128  METZLER'S   OHIO    TRIAL    EVIDENCE  166 

doing  of  the  act,  and  any  act  done  in  consequence  of  it  by  or 
by  the  authority  of  that  person. 

Stephen's   Dicrest,   Art.   7. 

(b)  In    criminal   cases,   it   is   competent    for   the    state    to 

prove  conduct,  and  statements  of  the  accused  which  he  would 

not  probably   have   made   if  innocent,    and   which,    therefore, 

have  a  tendency  to  give  rise  to  the  inference  that  he  had  a 

guilty  connection  therewith. 

Grillo  V.  State,  9  C.  C.  394,  6  C.  D.  90,  92. 
Moore  v.   State,   2   O.   S.  500. 

(c)  If  the  circumstances  manifest  an  extraordinary  state 
of  mind  or  the  presence  of  uncommon  ideas  in  such  a  manner 
as  probably  relate  to  the  consciousness  of  guilt,  or  where  they 
are  such  a  part  of  the  history  or  conduct  of  the  accused  as 
may  connect  itself  with  the  subject,  or  become  important  in 
connection  with  other  facts  and  circumstances,  they  are  proper 
matters  of  evidence. 

]\roore  V.  state,  2  0.  S.  500. 

(d)  In  a  murder  case  it  is  competent  for  the  defendant  to 
prove  that  the  deceased  and  others  had  agreed  to  go  to  the 
house  where  the  defendant  boarded,  for  the  purpose  of  quar- 
reling with  him,  and  that  they  had  approached  him  with  that 
intent  at  the  time  the  affray  commenced  which  resulted  in 
the  homicide ;  and  to  prove  the  conversation  of  the  parties,  in 
relation  to  such  agreement,  though  the  defendant  had  not 
been  informed  of  the  intent  of  the  parties  in  approaching  him. 

Stewart  v.  State,  19  Oh.  302. 

Cf.  Waltha  v.  State,  U  C.  C.    (X.S.)    145. 

(e)  On  a  trial  for  murder,  it  is  competent  for  the  state  to 
prove  that  the  defendant  made  threats  against  the  property 
of  a  person  other  than  the  deceased,  where  the  evidence  shows 
that  such  property  was  then  in  the  possession  of  the  deceased, 
and  shortly  after  the  murder  was  found  in  the  possession  of 
the  defendant. 

Mimms  v.   State,   16  0.  S.  221    (see  pages  230-231). 

(f)  The  defendant  being  charged  with  killing  a  woman  by 
strangling,  it  is  proper  to  show  that  after  the  killing  and  be- 
fore the  body  was  found,  he  described  how  he  could  kill  a 


167  RELEVANCY  §  128 

person  by  strangling.  This  kind  of  evidence  is  admissible  as 
a  part  of  defendant's  conduct  -svhich  shows  the  workings  of 
his  mind.  That  it  might  have  been  produced  by  thought  of 
the  homicide  and  consciousness  of  guilt,  is  suflScient  to  admit 
it  as  evidence. 

Moore  v.  State,  2  0.  S.  500. 

(g)  It  is  competent  for  the  state  to  prove  that  the  defend- 
ant fled  from  the  place  where  the  crime  was  committed  soon 
after  its  commission  or  discovery ;  and  also  w^hat  took  place  in 
his  capture,  as  that  he  resisted  arrest. 

Grille  V.  State,  9  C.  C.  394,  6  C.  D.  90. 

Zeltner  v.  State,   13  C.  C.    (N.S.)    417,  22  C.  D.  102. 

(h)  Testimony  is  competent  which  tends  to  show  that  a 
party  has  been  guilty  of  using  money  designed  for  an  im- 
proper purpose  in  connection  with  the  trial ;  and  it  is  discre- 
tionary with  the  court,  in  furtherance  of  justice,  to  admit 
such  evidence  at  any  stage  of  the  trial. 

Berry  v.  State,  31  0.  S.  219,  230. 

Cf.  Townsend  v.  State,  23  C.  D.  40S,   17  C.  C.   (X.S.)    380,  385. 

(i)  Evidence  that  a  person  charged  with  receiving  stolen 
goods  made  an  attempt  by  an  offer  of  money,  to  dissuade  an 
officer  from  searching  the  premises  where  the  property  was 
concealed,  may  be  competent  as  tending  to  show  that  the 
accused  was  guilty ;  but  it  alone  is  not  sufficient  to  constitute 
the  offense. 

Vanimmons  v.  State,  22  C.  C.  451,  12  C.  D.  345. 

(j)  Where  a  party  is  indicted  for  the  forgery  of  a  note, 
evidence  that  the  defendant  after  being  charged  with  the 
forgery,  voluntarily  and  without  consideration  released  a 
judgment  he  had  taken  on  the  note,  is  competent  on  the  ques- 
tion of  his  guilt, 

Burdge  v.  State,  53  0.  S.  512. 

(k)  Indirect  evidence  that  tends  to  show  a  conspiracy  on 
the  part  of  the  defendant  and  others  to  fabricate  a  defense  to 
an  indictment  for  bribery  is  competent  in  chief.  The  fact  that 
such  evidence  is  of  a  circumstantial  nature  and  not  direct  does 


§129  METZLER'S   OHIO    TRIAL    EVIDENCE  168 

not  render  it  incompetent,  v.liere  it  otherwise  conforms  to  the 
established  rules  of  evidence  in  cases  of  conspiracy. 
State  V.  Huffman,  86  0.  S.  220. 

(1)  In  a  prosecution  for  rape,  evidence  that  the  defend- 
ant's brother  made  offers  to  compound  the  crime  is  not  com- 
petent on  the  part  of  the  state,  unless  in  connection  with 
evidence  of  authority  to  make  the  offer,  or  of  some  knowledge 
thereof  by  the  defendant. 

Pratt  V.  State,  19  0.  S.  277. 

(m)  If,  after  the  commission  of  an  offense,  threats  are 
made  by  the  defendant  against  the  prosecuting  attorney,  evi- 
dence of  such  alleged  threats  are  not  admissible,  unless  it 
appears  that  thev  are  of  such  character  as  to  manifest  a  con- 
sciousness of  guilt. 

Gawn  V.  State,   13  C.  C.  116,  7  C.  D.  19. 

129.  SUBSEQUENT  REPAIRS. 

(a)  Subsequent  repairs  and  alterations  by  the  defendant 

to  prevent  recurrence  of  similar  injuries  are  not  admissions 

of  negligence  and  are  incompetent  evidence  to  show  such  fact. 

Cleveland  Co.  v.  Limmermaier,  8   C.  C.  701,  4  C.  D.  240. 

Cf.  Railway  v.  Godwin,   12   C.  D.  537. 

Lebanon  v.  Schwartz,  4  0.  App.  173,  25  C.  C.   (X.S.)    273. 

(b)  The  evidence  is  incompetent  because  the  taking  of 
such  precautions  against  the  future  is  not  to  be  construed  as 
an  admission  of  responsibility  for  the  past,  and  has  no  legiti- 
mate tendency  to  prove  that  the  defendant  had  been  negligent 
before  the  accident  happened,  and  is  calculated  to  distract  the 
minds  of  the  jury  from  the  real  issue,  and  to  create  a  pre- 
judice ?  gainst  the  defendant. 

Cleveland  Co.  v.  Limmermaier,  8  C.  C.  701,  4  C.  D.  240,  241. 

(c)  In  an  action  for  personal  injuries  received  in  a  wreck 
caused  by  a  stone  which  was  jarred  from  a  flat  car  wuthout 
standards  to  prevent  the  stone  from  falling  off,  the  admission 
of  evidence  of  repairs  to  or  changes  in  cars  made  after  the 
accident  is  incompetent,  and  if  admitted  constitutes  prejudi- 
cial error. 

Railway  v.  Beard,  11  C.  D.  406,  20  C.  C.  681. 


169  RELEVANCY  §  129 

(d)  Evidence  showing  that  the  defendant  immediately 
after  an  accident  made  a  repair  of  the  defective  sidewalk 
where  the  accident  occurred,  is  not  competent  testimony  to 
show  that  the  defendant  knew,  prior  to  the  accident,  that  the 
defect  existed. 

Root  V.  Monroeville,  4  C.  D.  53.  16  C.  C.  617. 

(e)  But  when  a  witness  for  the  defendant  testifies  that 
shortly  after  the  accident  he  examined  the  walk  and  fouiul  it 
in  good  repair,  he  may  be  asked  on  cross-examination  v,  hether 
or  not  some  days  after  the  accident  he  repaired  the  walk. 

Bond  Hill  v.  Atkinson,  16  C.  C.  470,  0  C.  D.  1S.5. 

(f)  And  evidence  that  defendant  soon  after  the  injury  to 
plaintiff  repaired  the  safety  api)liance  which  was  alleged  to 
have  been  the  cause  of  the  accident,  is  competent  as  tending 
to  prove  an  admission  by  the  defendant  that  it  was  his  duty 
to  maintain  the  appliance. 

Ashtabula  v.  Hartram,   ,3   C.  C.  640,  2   C.  D.   372. 

Cf.  Lebanon  v.  Schwartz,  4  0.  App.  173,  2.^)  C.  C.    (N.S.)    273. 

(g)  Evidence  of  a  change  in  order  to  be  competent  must 
relate  to  a  period  within  a  reasonable  time.  And  the  question 
as  to  just  what  is  a  reasonable  time  is  one  for  the  judge,  and 
must  be  determined  before  the  jury  will  be  entitled  to  con- 
sider such  evidence. 

Tvailway  v.  Godwin,  12  C.  D.  537. 

(h)  Evidence  that  the  defendant  made  certain  changes 
shortly  after  an  accident  is  competent  where  the  only  pur- 
pose of  the  questions  asked  is  to  ascertain  the  condition  or 
situatioi:  of  things  at  the  time  of  the  alleged  accident,  that  is, 
whether  the  appliance  was  safe  or  dangerous. 

Telephone   Co.  v.  .Tackson.   16   r,  J).  89,  4   C.  C.    (KS.)    386. 

Railway  v.  Codwin,   12  C.   D.  537. 

Iron  &.  Steel    Co.  v.  Wir-and,   15   C.  C.    (N.S.)    417,  24  C.   D.  556. 

Lebanon   v.   Schwartz,   4  O.    App.    173,  25  C.   C.    (X.S.)    273. 

(i)  Testimony  tending  to  show  the  defective  condition  of 
a  machine  several  months  after  an  accident  is  inadmissible, 
when  it  is  not  shown  that  it  was  in  substantially  the  same 
condition  then  as  when  the  accident  occurred. 

Henkel  v.  Stahl,  IS  C.  C  831,  ft  C.  D.  397. 

Railway  v.  Godwin,   12   C.   D.  537. 


§130  METZLER'S   OHIO   TRIAL    EVIDENCE  170 

130.  REMOTENESS. 

(a)  If  the  evidential  fact  tends  to  prove  a  fact  in  issue, 
the  evidence  is  relevant ;  and  it  is  admissible  if  not  excluded 
by  some  other  rule.  In  other  words,  no  irrelevant  fact  is 
admissible ;  but  every  relevant  or  probative  fact  is  admissible 
unless  excluded  by  some  other  rule  of  evidence. 

(b)  The  spirit  of  the  law  of  evidence  permits  a  resort  to 
every  reasonable  source  of  information  upon  a  disputed  ques- 
tion of  fact  arising  in  a  ease.  Unless  excluded  by  some  posi- 
tive exception,  everything  relative  [relevant]  to  the  issue  is 
regarded  as  admissible ;  and  this  is  extended  to  every  hypo- 
thesis pertinent  to  the  issue. 

Bell  V.  "Brewster,  44  0.  S.  690,  697. 

(c)  However,  there  are  some  positive  exceptions.  The 
rule  confining  evidence  to  the  point  in  issue  excludes  all  evi- 
dence of  collateral  facts  which  are  incapable  of  affording  any 
reasonable  inference  as  to  the  principal  matter  or  fact  in 
dispute.  The  evidential  fact  must  not  be  too  remote.  This  is 
the  first  rule  of  exclusion. 

Brewing   Co.   v.   Bauer,   .^O   0.   S.   560,   564. 

(d)  Facts  entirely  collateral  to  the  issue  are  not  admis- 
sible in  evidence.  The  reason  for  this  rule  is  that  such  evi- 
dence tends  to  draw  away  the  minds  of  the  jurors  from  the 
point  in  issue,  and  to  excite  prejudice  and  mislead  them;  and 
moreover,  the  adverse  party,  having  had  no  notice  of  such  a 
course  of  evidence,  is  not  prepared  to  rebut  it. 

Knight  V.  State.  54  0.  S.  365.  .379. 
Insurance  Co.   v.  Tohin,   32   O.   S.   77,  90. 
McDermott  v.   State,    13   0.   S.    332,   335. 

(e)  Where  the  circumstances  are  so  remote,  or  where  it 
is  apparent  for  other  reasons  that  they  can  cast  no  light  on 
the  subject,  the  court  must  reject  proof  of  them,  although 
they  consist  of  the  conduct  of  the  party  himself. 

Moore  v.  State,  2  0.  S.  500.  506. 
Selzer  v.  Coal  Co.,   12  C.  D.  7S7. 

(f)  Even  for  the  purpose  of  corroborating  the  testimony 
of  wntnesses,  an  inquiry  into  facts  entirely  collateral,  leading 


171  RELEVANCY  §130 

to  a  controversy  over  matters  altogether  foreign  to  the  case 
before  tlie  court,  can  not  be  permitted. 
Henkle  v.  IMcChire,  32  0.  S.  202. 

(g)  Tn  an  action  for  damages  for  breach  of  contract,  evi- 
dence as  to  probable  future  profits  is  incompetent  to  be  given 
in  chief  by  the  plaintiff,  as  furnishing  a  basis  for  the  assess- 
ment of  the  damages  by  the  jury,  because  such  evidence  is 
uncertain  and  speculative  in  its  nature  and  in  a  great  degree 
conjectural. 

Rhodes  v.  Baird,  16  0.  S.  573. 

(h)  In  an  action  to  recover  damages  for  personal  injury, 
no  recovery  can  be  had  for  future  pain  and  suffering  except 
such  as  the  evidence  shows  are  reasonably  certain  to  result 
from  the  injury.  Evidence  that  pain  and  suffering  "may" 
or  "might"  result  is  not  competent.  Evidence  that  such  re- 
sults will  probably  follow  is  competent ;  but  to  justify  a  re- 
covery therefor  the  jury  must  find  from  all  the  evidence  that 
reasonable  certainty  of  results  exists,  and  the  jury  should  be 
so  charged. 

Railway  v.  Poland,  7  0.  App.  3fi:.  -27  0.  C.  A.  10,5,  28  C.  D.  198. 

Pennsylvania  Co.  v.  Files,  Co  0.  S.  403. 

(i)  On  the  trial  of  an  action  by  an  administrator  to  re- 
cover for  injuries  which  have  proved  fatal,  it  is  not  compe- 
tent to  call  witnesses  to  testify  that  the  deceased  was  in  the 
line  of  promotion  when  the  injuries  were  received.  It  would 
introduce  speculative  considerations  into  the  assessment  of 
damages. 

nossc  V.  Railroad,  58  0.   P.   167. 

(j)  In  an  action  for  the  benefit  of  husband  and  children 
for  wrongfully  causing  the  death  of  the  wife  and  mother,  evi- 
dence of  his  second  marriage  to  one  who  rendered  like  serv- 
ices and  contributed  in  like  manner  as  the  first  wife  to  the 
support  of  the  family  and  the  accumulation  of  property,  is 
not  admissible  in  mitigation  of  damages.  The  rule  is  the 
same  w^here  the  deceased  was  insured. 

Davis  V.  Giiarnieri,  45  O.  S.  470. 

Cf.  Brunk  v.  Railroad,  20  K.  P.   (N.R.)    360,  28  O.  D.  .320. 

(k)  A  declaration  by  the  Avife  of  the  accused  to  the  wit- 
ness that  she  would  send  hor  husband  to  the  penitentiary  if 


§  131  METZLER'S    OHIO    TRIAL    EVIDENCE  172 

others  did  not,  is  irrelevant ;  the  belief  of  the  wife  of  the 
accused  as  to  his  guilt  is  immaterial.  On  the  trial  of  issues 
joined  by  the  plea  of  not  guilty,  it  is  error  to  admit  evidence, 
tlie  only  effect  of  which  is  to  show  that  others  believe  the 
accused  guilty. 

Jones  V.  State,  54  0.  S.  1. 

(1)  In  an  action  for  damages  for  breach  of  a  contract  for 
the  sale  of  real  estate,  it  is  error  to  admit  evidence  as  to  what 
the  property  brought  when  offered  at  public  auction  at  a 
later  date  and  upon  different  terms.  The  measure  of  damages 
in  such  a  case  is  the  difference  between  the  contract  price  and 
the  market  price  at  the  time  of  the  breach. 

Eisenstadt  v.   Lucke,  25   C.   C.    (X.S.)    225. 

(in)  In  an  action  for  damages  for  the  breach  of  a  contract 
for  insurance  which  provides  that  the  rate  shall  be  the  aver- 
age rate  paid  for  a  like  risk  by  others  in  the  same  business 
in  the  same  city,  evidence  by  the  officers  of  an  inspection 
bureau  as  to  the  rate  which  it  had  placed  upon  the  property 
is  not  competent  to  prove  that  the  insurance  tendered  under 
the  contract  w^as  at  the  rate  provided  therein. 

Prescott  V.  Koblitz,  25  C.  C.    (N.S.)    84. 

(n)  The  procurement  of  indemnity  against  loss  from  the 
enforcement  of  a  threatened  claim  is  not  an  admission  of 
liability  on  such  claim.  Nor  does  the  fact  that  an  employer 
carries  workmen's  insu^nce  tend  to  show  a  lack  of  care  on 
his  part.     Such  evidence  is  not  admissible. 

Treuhaft  v.  Dambach,   16   C  C.    (N.S.)    526,  25   C.  D.  570. 

Rupp  V.  Shaffer,  21   C.  C.  643,   12  C.  D.   154. 

(o)  On  examination  of  the  matters  which  are  ordinarily 
excluded  as  being  too  remote,  it  will  be  found  that  they  occa- 
sionally become  so  involved  in  the  issues  of  a  case  or  the 
questions  of  fact  raised  by  the  evidence  that  they  are  ad- 
missible as  evidence.  Therefore,  it  is  probably  impossible  to 
say  of  any  matter  that  it  is  alw^ays  excluded. 

131.  SIMILAR  OCCURRENCES. 

(a)  In  an  action  to  recover  insurance  on  a  boat  lost  by 
an  unknown  peril,  the  plaintiff  can  not  in  chief  prove  specific 


173  RELEVANCY  §  131 

instances  of  the  loss  of  other  boats  from  unknown  causes  of 
leaking  on  the  same  waters.  Such  evidence  would  create  col- 
lateral issues. 

Insurance  Co.  v.  Tobin,  32  0.  S.  77. 

(b)  AVhere  it  was  in  issue  whether  barrels  leaked  because 
of  defective  material,  bad  inspection  and  poor  workmanship, 
it  was  held  irrelevant  to  prove  that  other  barrels  made  by  the 
same  cooper  during  the  same  season,  through  the  same  process 
and  out  of  timber  cut  from  the  same  forest,  were  tight. 
Neither  defects  nor  absence  of  defects  in  an  article  may  be 
proved  by  showing  defects  or  absence  of  defects  in  similar 
articles;  and  such  evidence  is  inadmissible. 

Wymond  Co.  v,  Thompson,  8  X.  P.  347.  11  0.  D.  487. 
Manufacturing  Co.  v.  Maitland,  92  0.  S.  201,  205. 

(c)  On  trial  for  injury  to  a  locomotive  engineer  by  a 
bridge  giving  way  in  a  freshet,  evidence  that  a  liighway  bridge 
not  far  away  was  ten  feet  lower  than  the  track  and  yet  was 
not  injured  by  the  freshet  is  irrelevant  and  tends  to  raise 
collateral  issues. 

Railway  v.  Ellis,   13   C.  C.  704,  6  C.  D.  304. 

(d)  In  an  action  to  recover  for  injuries  received  in  a  colli- 
sion at  a  railroad  crossing,  it  is  error  to  permit  the  plaintiff 
to  prove  that  other  persons  had  been  injured  by  passing  trains 
at  the  same  crossing  before  the  injury  to  plaintiff.  And  evi- 
dence tending  to  show  that  decedent  was  a  careful  man  under 
such  circumstances,  or  was  guilty  of  negligence  at  the  same 
crossing  on  previous  occasions  is  incompetent ;  but  evidence 
that  he  was  familiar  with  the  crossing  is  competent. 

Railway  v.  GafTney,  9  C.  C.  32,  6  C.  D.  94,  7. 
RailwaV  V.  Parker,  9  C.  C.   (X.S.)   28,  19  C.  D.   1. 
Penn.  Co.  v.  Trainer,  12  C.  C.  CG,  .5  C.  D.  .IIO. 
Railroad  v.  Van   Horn,  21    C  C.  337,   12  C.  D.   106. 
Cf.  Davider  v.  Railway,  20  C.  C.    (X.S.)    165. 

(e)  It  is  conceded  that  when  evidence  of  similar  acci- 
dents is  offered  simply  to  illustrate  a  physical  fact  before  or 
after  the  occurrence  under  investigation,  nnd  the  conditions 
are  the  same,  such  evidence  is  admissible ;  but  when  the  pru- 


§  132  METZLER'S    OHIO    TRIAL    EVIDENCE  174 

dence  of  another  person  ■who  had  met   ^vith   a  like   accident 
would  be  much  involved,  such  evidence  is  generally  excluded. 

Eailway  v.  GafTney,  9  C.  C.  32,  6  C.  D.  04,  97. 

Cf.   Brewing  Co.   v.   Bauer,   50  O.   S.  560. 

(f)  When  the  issue  raised  is  whether  the  car  which  caused 
the  accident  was  being  operated  at  a  high  and  dangerous  rate 
of  speed,  evidence  that  other  cars  were  run  at  such  rate  of 
speed  is  not  admissible.  But  it  has  been  held  that  where 
there  is  a  question  as  to  the  time  in  which  the  electric  car 
which  struck  plaintiff  could  have  been  stopped,  testimony  is 
admissible  to  show  the  time  within  which  other  cars  had  been 
stopped. 

Furrer  v.  Railway,  7  0.  App.  491,  27  0.  C.  A.  410,  30  C.  D.  200. 

Cleve.  Ry.  v.  Hunter,   10  C.  C.    (N.S.)    564,    12   C.   D.  769. 

132.  OTHER  FIRES. 

(a)  In  an  action  to  recover  for  property  destroyed  by  fire 
started  by  a  passing  locomotive,  the  proof  is  subject  to  con- 
siderable latitude.  It  is  competent  to  show  that  the  fire 
started  in  the  grass  along  the  track  soon  after  the  passage  of 
a  locomotive ;  and  that  about  that  time  and  immediately  after- 
ward, other  fires  occurred  in  that  neighborhood. 

Railroad  v.  Kelly,  10  C.  C.  322,  6  C.  D.  555. 
Railway  v.  James,  IS  C.  C.   (N.S.)   210,  1  O.  App.  335. 

(b)  Unless  the  identification  of  the  particular  locomotive 

throwing  the  sparks  is  certain,  witnesses  are  not  confined  in 

their  testimony  to  any  particular  locomotive,   but   may   show 

that  the  engines  of  the   railroad   company   generally   emitted 

sparks  as  they  passed  along  about  the  time  of  the  fire ;  and 

the  witness  would  not  be  confined  to  a  day  or  two,  but  would 

be  allowed  to  testify  as  to  a  reasonable  time;  and  a  month 

preceding  the  fire  would  not  exceed  the  limit. 

Martz  V.  Railroad,   12  C.  C.   144,  5   C.  D.  451. 
Railroad  v.  Kelly,   10  C  C.  322,  6  C.  D.  555. 

(c)  But  it  is  error  to  permit  evidence  to  go  to  the  jury 
which  tends  to  show  that  at  different  times  and  places  engines 
of  the  company,  other  than  the  one  which  it  is  claimed  com- 
municated the  fire,   emitted  sparks  which  were   carried   long 


175  RELEVANCY  §  133 

distances  by  the  wind,  such  evidence  being  of  too  remote  a 
character :  and  because  of  its  remoteness  it  is  incompetent  and 
inadmissible. 

Penn-svlvania  Co.  v.  "Rossman.   13  C.  C.   Ill,  7  C.  D.   110. 
See  Railroad  v.  Fredi'iihur,  2  C.  I),   lo,  3  C.  C.  23. 

133.  OTHER  OFFENSES. 

(a)  It  is  the  general  rule  that  proof  of  one  offense  is  not 

competent  to  jn-ove  that  the  party  committed  another  distinct 

and  unrelated  offense.     Such  facts  are  regarded  as  collateral. 

Knight  V.   state,  54  0.   S.   365.   379. 
Stockwell  V.  State.  27  O.  S.  503. 
See  State  v.  Diekerson,  77  0.  S.  34. 

(b)  In  a  trial  for  homicide,  evidence  that  the  defendant 
on  a  former  occasion  attempted  to  shoot  another  person  is 
not  competent,  and  it  is  not  error  to  exclude  such  evidence. 

Zeltner  v.  State,   13  C.  C.    (N".S.)    417,  22  C.  T).  102. 

(c)  On  an  indictment  charging  the  prisoner  with  poison- 
ing A  in  December,  it  is  error  to  permit  evidence  in  chief  to 
show  that  he  poisoned  B  in  August  previous,  where  there  was 
no  intimation  that  the  prisoner  used  the  poison  while  ignorant 
of  its  character. 

Farrer  v.  State.  2  0.  S.  54,  73. 

(d)  "Where  a  member  of  a  municipal  department  is  charged 
with  the  violation  of  a  rule  of  the  department  requiring  mem- 
bers promptly  to  pay  their  debts,  and  the  specification  charges 
the  failure  to  pay  a  certain  claim,  evidence  that  such  member 
has  failed  to  pay  other  debts  is  incompetent. 

State,  ex  rel.,  v.  Hyman,  21   C.  C.   1^7.   11   C.  T>.  5.50. 

(e)  In  a  trial  for  an  illegal  sale  of  intoxicating  liquor, 
prior  sales  could  not  be  shown  by  the  state ;  and  the  defend- 
ant should  not  be  allowed  to  show  that  at  other  times  he 
refused  to  sell  or  give  away  such  liquor  as  a  beverage  to  the 
same  or  other  persons. 

State  V.  Lind.T.  7fi  O.  S.  463. 

(f)  0^^  t:!P  trial  of  a  criminal  case,  it  is  error  to  jiorjnit 
the  state  to  jirove  l;y  cross-examination  of  a  witness  called  by 


§  133  METZLER'S   OHIO   TRIAL    EVIDENCE  176 

tlie    defendant,    that    the    accused    stands    indicted    for    other 

offenses. 

Hamilton  v.  State,  34  0.  S.  82. 

(g)  But  where  a  prisoner  on  trial  for  arson  testified  in 
answer  to  questions  by  his  own  counsel  as  to  a  number  of 
other  fires  by  himself,  the  door  is  opened  to  the  state  to  show 
the  fact  of  other  fires  in  buildings  occupied  by  him  which  he 
had  not  admitted  or  explained. 

Berman  v.  State,  23  C.  D.  3S6,   If,  C.  C.    (X.S.)    lOO.  111. 

(h)  Where  the  defendant  is  charged  with  rape  committed 
on  November  20,  and  evidence  to  that  effect  is  given  at  the 
trial,  it  is  error  to  admit  eviden^ce  against  the  objection  of  the 
accused  that  he  also  committed  rape  on  the  same  person  on 
the  20th  day  of  October  of  the  same  year. 

Snurr  v.  State.  4  C.  C.  303,  2  C.  D.  614. 

Rason  v.  State,  78  0.  S.  449. 

(i)  But  in  sexual  crimes  with  consent,  including  incest, 
other  and  similar  adulterous  or  licentious  acts  or  conduct  by 
the  defendant  toward  the  prosecutrix,  whether  prior  or  after 
the  date  charged,  are,  if  not  too  remote,  admissible  for  the 
purpose  of  showing  the  adulterous  or  incestuous  disposition  of 
the  defendant,  and  the  illicit  and  continuous  sexual  relations 
existing  between  them. 

State  V.  Eeineke,  80  0.  S.  300. 

(j)  Frequent  acts  of  sexual  intercourse  between  a  teacher 
and  his  pupil  at  times  other  than  that  charged — even  acts 
outside  the  county  and  after  his  term  as  teacher  has  expired 
--may  be  given  in  evidence  to  throw  light  on  the  relations  of 
the  parties,  if  the  acts  are  continuous  and  consecutive  with 
the  act  charged. 

Esley  V.  State,  10  C.  C.  (X.S.)    160,  10  C.  D.  .^,68. 

(li)  Wliere  defendant  is  charged  with  having  carnally 
known  a  female  person  under  sixteen  with  her  consent,  evi- 
dence of  similar  prior  acts  within  the  two  months  preceding 
the  date  charged,  is  admissible  to  shoAv  their  relation  and 
intimacy,  and  as  corroborative  of  her  testimony  as  to  the  act 
charged. 

ToYd  V.   State,  81   0.  S.  239. 


177  RELEVANCY  §  134 

(1)  But  it  Avas  held  in  the  same  kind  of  a  case  that  con- 
febbions  or  admissions  of  the  accused  of  acts  of  sexual  inter- 
course with  the  prosecutrix  more  than  two  years  after  the 
time  of  the  alleged  commission  of  the  offense  for  which  he  is 
being  tried,  and  after  ])rosecutrix  had  attained  the  age  of  six- 
teen years,  are  not  competent  to  be  given  in  evidence  against 
him  as  tending  to  prove  the  crime  charged  in  the  indictment. 

State  V.  Lawrence,   74  0.  S.  38. 

134.  FINANCIAL  ABILITY. 

(a)  Financial  ability  of  either  party  is  generally  inadmis- 
sible ;  this  is  especially  true  in  regard  to  plaintiff.  In  an  action 
for  causing  death,  evidence  of  the  poverty  of  the  widow  and 
children  of  the  decedent  is  incompetent.  The  fact  that  the 
home  of  the  decedent  was  mortgaged  is  incompetent  where 
offered  in  derogation  of  his  earning  capacity. 

Railroad  v.  Eernolds.  21   C.  C.   402.   11   C.  D.  701. 
railway  v.  Parker,  9  C.  C.    (X.S.)    2S,   10  C.  D.   1. 
See  Bowe  v.  Bowe,  5  C.  C.    (X.S.)   233,  16  C.  D.  409. 
Galion  v.  Lauer,  55  0.  S.  302. 

(b)  But  in  an  action  where  punitive  damages  may  be 
alloAved,  evidence  of  the  defendant's  pecuniary  ability  is  ad- 
missible. And  it  has  been  held  to  be  a  general  rule  that  it  is 
not  misconduct  justifying  a  new  trial  for  a  jury,  while  delib- 
erating upon  a  case,  to  discuss  the  defendant's  ability  to  pay 
the  amount  of  its  verdict. 

ITayner  v.  Cowden,  27  0.  S.  292. 

Berry  v.  IMfg.  Co.,  18  X.  P.   (X.S.)    203,  20  O.  D.  301. 

(c)  In  an  action  for  libel  or  slander,  the  wealth  of  the 
defendant  may  be  shown  for  the  purpose  of  increasing  the 
compensatory  damages  and  as  bearing  upon  exemplary  or 
punitive  damages.  This  evidence  should  be  offered  by  plain- 
tiff in  chief;  but  if  this  is  not  done,  it  is  not  error  to  allow 
cross-examination  of  defendant  on  the  subject. 

Steen  v.   Friend,  20  C.   C.  459.   11    CD.   235. 
Lamprecht  v.   Crane,  5   O.   D.   753,   4    Bull.    1107. 

(d)  In  an  action  for  assault  and  battery,  evidence  regard- 
ing the  amount  of  property  and  wealth  of  the  defendant  as 
it  bears  upon  his  ability  to  respond  in  damages  is  admissible, 


§  135  METZLER'S    OHIO    TRIAL    EVIDENCE  ITS 

where    the   blow    was   struck   with   ill    will    or    under    circum- 
stances of  insult. 

Hendricks  v.  Fowler,   IG  C.  C.  600,  9  C.  D.  200. 

(e)  In  a  breach  of  promise  case,  the  value  of  defendant's 

estate  may  be  shown,  not  because  the  action  is  for  punitive 

damages,    but    because    the    plaintiff's    loss   by    the    breach    is 

greater  in  proportion. 

Stribley  v.  Welz,  8  C.  C.  571,  4  C.  D.  520. 
.Tiuvis   V.  -lolni^oii,  2   O.  J).  It.   :?7-2.  2   W.   L.  ^^f.  3S9. 
Duvall  V.  Fuhrnian,  3  C.  C.  30r>,  2   C.  D.   174. 

(f)  In  an  action  to  recover  the  value  of  professional  serv- 
ices on  a  quantum  meruit,  evidence  of  the  pecuniary  condition 
of  the  defendant  and  that  he  was  a  very  wealthy  man.  is  not 
competent,  at  least  unless  it  is  shown  that  the  usual  price 
varies  with  the  ability  to  pay. 

Saffin   V.  Thomas,  4  C.  D.  43S,  S  C.  C.  253. 

(g)  Testimony  that  a  son  of  the  testator  was  heavily  in 
debt  at  the  time  the  will  was  executed  is  competent  to  show 
the  purpose  of  the  testator  to  protect  the  estate  against  cred- 
itors of  the  son  by  giving  it  all  to  his  son's  wife  and  their 
children. 

Kuester  v.  Yeoman,  14  C.  T.    (X.S.)    2fi4.  22   C.  D.  476. 
Cf.   Snyder   v.   Ream,   Iddings,    16S. 

(h)  On  the  question  of  whether  a  deed  from  father  to  son 
was  an  advancement  or  for  a  consideration  still  due,  the  rela- 
tion of  the  parties  and  the  circumstances  of  the  father  are 
relevant. 

Harrison  v.  Castner,  11  0.  R.  330.  346. 

(i)  Evidence  of  the  financial  condition  of  a  party  is  rel- 
evant when  the  question  is  whether  he  promised  to  pay  a 
barred  debt.  The  experience  of  men  has  shown  that  it  is  more 
probable  that  a  man  of  ample  means  would  do  this,  than  one 
who  M'as  not  financially  able  to  do  so. 

Dyer  v.  Isham.  4  C.  C.  420,  2  C.  D.  633. 

Contra,  Devere  v.  State,  3  C.  D.  240,  5  C.  C.  500,  518. 

135.  CUSTOM  OR  HABIT. 

(a)  Evidence  of  habit  (of  persons)  is  considered  as  too 
remote,  when  the  habit  is  irregular.     In  the  absence  of  some 


179  RELEVANCY  §  135 

necessity  for  tlie  introduction  of  such  evidence  to  meet  an 
exigenc3%  it  ^vill  be  rejected.  But  habit  may  involve  invari- 
able regularity  of  action,  which  would  nuike  it  somewhat  like 
a  fixed  rule.     In  such  eases  it  is  admissible. 

Haitman   v.  "Railway.  7  0.  App.  206,  28  O.  C.  A.  110.  .^0  C.  D.  20. 

Penn.  Co.  v.  Mahoiiy.  22  C.  V.  4(in,   12  C.  D.  360. 

Ingersoll    v.   Herider,    12   Oh.    .■)27. 

(b)  Evidence  that  it  was  the  custom  of  a  railway  con- 
ductor to  give  warning  to  the  trainmen  assisting  him  in  the 
making  up  of  a  train  in  the  yards,  is  admissible  upon  the 
(question  whether,  knowing  the  custom,  the  conductor  exer- 
cised ordinary  care ;  and  also  upon  the  question  whether  the 
deceased,  being  aware  of  the  custom  and  of  the  habit  of  the 
conductor,  was  guilty  of  contributory  negligence. 

Railway  v.  Botefuhr,  20  C.  D.  67,  10  C.  C.   (X.S.)    23 1. 

Cf.   Schwartz   v.   Railway,    11   C.  C.    (X.S.)    65,  20  C.  D.  394. 

(c)  In  an  action  for  personal  injuries  resulting  from  one 
train  running  into  another,  evidence  need  not  be  confined  to 
the  rules  of  the  company  governing  the  duties  of  the  train 
crew  of  the  aj^proaching  train,  but  evidence  of  a  custom  which 
is  followed  by  trainmen  under  such  circumstances  is  admis- 
sible, 

Carl   V.  Pierce,  20  C.   C.   6S,   10  C.  "D.  711. 

(d)  Evidence  of  a  custom  of  slackening  the  speed  of  elec- 
tric cars  in  approaching  a  })articular  street  crossing  is  ad- 
missible in  a  trial  involving  a  collision  at  that  crossing,  as 
bearing  upon  tlie  question  of  contributory  negligence  on  the 
part  of  the  one  injured. 

Railway    v.   Ward.   2   C.   C.    (N.S.)    2.-)6.    I.')   C.   D.   399. 

(e)  "SVliere  an  employe  making  repairs  at  the  top  of  a 
telephone  ])ole  and  supporting  himself  in  jiart  by  tiic  aid  of 
a  guy-wire,  wliicli  was  claimed  to  be  defective,  fell  by  the 
breaking  of  the  guy-wire,  and  was  killed,  evidence  of  a  cus- 
tom, usage,  habit  or  general  practice  of  employes  to  use  the 
guy-wire  as  a  support,  known  to  tlif  employer,  or  which  by 
the  exercise  of  i  idinar-y  cai-e  should  have  been  known  by  it, 
is  competent. 

Davifl!=on  V  T.lcplione  Co.,  .5  O.  Ai-p.  2:!7.  26  C.  C.  (X.??.)  273,  27  C» 
D.  415. 

Of.  Packet   Co,   V.   I5iitti.n,    1    C.   C.    (X.S.)    ."IJ,   15   (  .   J).    153. 


CHAPTER  X. 

CHARACTER. 

136.  General  principles. 

137.  In  libel  and  slander. 

138.  In   torts  generally. 

139.  In    rape    and   .seduction. 

140.  In   crimes   generally. 

141.  In  defense  of  self-defense. 

142.  Social   standing. 

143.  Reputation    of    third    persons. 

144.  Reputation   of  things. 

145.  Province  of  court  and  jury. 

136.  GENERAL  PRINCIPLES. 

(a)  In  civil  cases  where  character  is  not  a  part  of  the 
issue,  the  general  rule  is  that  character  of  a  party  or  of  any 
person  not  a  witness  is  not  admissible. 

(b)  Upon  the  trial  of  an  action  brought  by  a  Avoman  to 
recover  damages  for  an  indecent  assault,  it  is  not  competent 
for  the  defendant  to  show  that  at  the  time  of  such  alleged 
assault,  the  reputation  of  the  plaintiff  for  chastity  was  bad. 
And  he  can  not  show  as  a  part  of  his  defense  that  he  was  a 
man  of  good  reputation, 

Sayen  v.  Ryan,  9  C.  C.  631,  6  C.  D.  732. 

Cf.  Reed   v.   State,  9S   0.   S.  279. 

Cf.  Allen  V.  State,  26  C.  C.  (N.S.)   254. 

(c)  On  an  application  to  revoke  a  preacher's  license  to 
marry  on  the  ground  that  he  is  not  a  member  nor  an  ordained 
minister  of  the  church,  evidence  of  his  conduct  or  moral  char- 
acter before  he  was  connected  with  the  sect  for  which  he  is 
preaching,  is  not  relevant. 

In   re   Reinhart,   9  0.   D.   441,   6   X.   P.  43S. 

(d)  "Whenever  character  is  a  part  of  the  issue,  as  in  libel 
and  slander,  it  is  admissible  in  evidence ;  and  when  good 
character  is  an  element  of  damage,  bad  character  may  be 
shown  in  mitigation  of  damages. 

180 


181  CHARACTER  §  137 

(e)  When  the  reputation  of  a  party  is  in  issue,  it  should 
be  proved  by  witnesses  who  were  acquainted  with  him  and  liis 
reputation  at  tiie  time,  or  before  the  time,  of  the  occurrence; 
and  it  can  not  be  proved  by  one  who  never  heard  of  him 
before,  but  might  have  heard  evil  reports  of  him  after  the 
occurrence. 

Insurance  Co.  v.  ]\ray,  20  Oh.  212,  225. 


137.  IN  LIBEL  AND  SLANDER. 

(a)  In  actions  for  slander,  a  general  reputation  of  want 
of  good  character  in  the  very  particular  or  trait  in  which  it 
has  been  assailed,  is  admissible  in  mitigation  of  damages ;  for 
the  damages  which  plaintiff  has  sustained  must  depend  largely 
upon  the  estimation  in  which  he  was  previously  held.  A  per- 
son of  bad  reputation  is  not  entitled  to  the  same  damages  as 
one  whose  character  is  above  suspicion. 

Duval  V.  Davey,  32  0.  S.  604,  612. 
Her   V.    Cromer,    Wright,    441. 

(b)  Where  the  slanderous  words  set  out  in  the  petition 
charged  the  plaintiff,  a  female,  with  a  want  of  chastity,  it  is 
competent  under  the  general  issue,  in  mitigation  of  damages, 
to  show  that  plaintiff's  general  reputation  for  chastity  at  and 
prior  to  the  speaking  of  the  words  was  bad.  The  inquiry  as 
to  reputation  need  not  be  confined  to  general  bad  character. 

Duval  V.  Davey,  32  0.  S.  604,  610. 

Cf.   Van   Derveer   v.   Sutpliin,  5   0.   S.   203. 

(c)  In  an  action  of  slander  by  a  husband,  it  is  competent 
for  the  defendant,  under  the  general  issue,  in  mitigation  of 
damages,  to  prove  that  the  wife  and  an  unmarried  man  had 
lived  together  alone  in  one  house,  where  a  knowledge  of  such 
mode  of  living  had  come  to  the  defendant  before  speaking  the 
words. 

Reynolds   v.  Tucker,   6  0.   S.  516. 

(d)  In  an  action  by  a  woman  for  slander  where  the  alleged 
defamatory  words  impute  to  her  a  want  of  chastity,  specific 
acts  of  sexual  intercourse  by  her  can  not  be  given  in  evideiu'e 
for  any  purpose,  under  the  issue  made  by  a  general  denial. 


§138  METZLER'S   OHIO   TRIAL    EVIDENCE  182 

The  direct  tendency  of  such  evidence  is  to  prove  a  justifica- 
tion ;  and  that  can  not  be  proved,  unless  it  is  specially  pleaded. 

Duval  V.  Davey,  32  0.  S.  604. 

Cf.  Fisher  v.  Patterson,   14  Oli.  418. 

(e)  But  under  an  indictment  charging  that  the  accused 
uttered  a  false  ajid  malicious  slander  of  a  female  of  good 
repute,  evidence  of  specific  acts  of  illicit  carnal  intercourse  by 
her  which  came  to  his  knowledge  immediately  before  the 
speaking  of  the  words  is  admissible  to  disprove  the  charge. 

Lambright  v.  State,  0  C.  C.    (X.S.)    151,  10  C.  D.  03. 

(f)  Where  in  libel  the  defense  is  justification,  it  is  error 

to  permit  the  plaintiff  over  the  defendant's  objection,  to  give 

in   chief  evidence  of  his  good   character.     The  law   presumes 

the  plaintiff's  character  to  be  good. 

Blakeslee  v.  TTujrhes.  50  0.  S.  400. 

Cf.  Kahn  v.  Times-Star,  8  K.  P.  61G,   10  0.  D.  599. 

(g)  And  where  in  an  action  of  slander  a  witness  had 
testified  that  the  plaintiff,  a  woman,  had  a  good  reputation, 
the  adverse  party  was  not  permitted  to  show  on  cross-exami- 
nation of  the  witness  that  the  plaintiff  had  been  in  the  habit 
of  associating  with  lewd  and  immoral  men  and  women.  Facts 
not  admissible  in  chief  as  a  defense  can  not  be  introduced  on 
cross-examination  under  the  guise  of  impeaching  the  witness. 

Duval   V.  Davey,  32  O.   S.   G04,  13. 

138.  IN  TORTS  GENERALLY. 

(a)  In  an  action  for  false  imprisonment,  the  person  who 
caused  the  arrest  may  show  the  bad  character  of  the  person 
arrested.  Such  evidence  tends  to  show  probable  cause:  as  a 
person  of  bad  character  is  more  likely  to  commit  a  crime  than 
a  person  of  good  character. 

Britton  v.  Granger,  7  C.  D.  182.  13  C.  C.  281. 

(b)  In  an  action  against  a  justice  for  unlawfully  commit- 
ting the  plaintiff  to  jail,  where  injury  to  reputation  is  alleged 
as  one  of  the  grounds  of  recovery,  it  is  competent  for  the 
defendant  to  prove  that  plaintiff  was  at  fTie  time  the  cause  of 
action  arose  of  bad  repute  for  honesty,  if  the  effect  of  the  evi- 


183  CHARACTER  §  139 

dence  is  limited  to  defeating  or  reducing  a  recovery  on  that 
particular  ground. 

Drummond  v.  TTonderson,  62  O.  S.  136. 

(c)  In  an  action  for  malicious  prosecution,  evidence  of  the 
plaintiff's  good  reputation  and  of  defendant's  knowledge  of 
such  reputation  may  be  introduced  for  the  purpose  of  show- 
ing want  of  probable  cause. 

Funk  V.  Amor,  4  C.  C.  271,  2  C.  D.  541. 


139.  IN  RAPE  AND  SEDUCTION. 

(a)  On  a  trial  for  rape,  the  character  of  the  prosecutrix 
for  chastity  can  not  be  impeached  by  evidence  of  particular 
acts  of  unchastity,  but  only  by  general  evidence  of  her  repu- 
tation in  that  respect.  Nor  can  she  be  interrogated  as  to  pre- 
vious criminal  intercourse  with  persons  other  than  the  ac- 
cused himself;  nor  is  such  evidence  of  other  instances 
admissible. 

McCombs  V.  State,   8   0.   S.   643. 
McDermott  v.  State,  13  0.  S.  332,  333. 

(b)  In  such  a  prosecution  it  is  not  competent  for  the 
accused  to  prove  that  the  prosecutrix  on  the  day  that  the 
offense  was  perpetrated,  had  agreed  with  a  third  person  to 
have  sexual  intercourse  with  him  at  other  times  and  places. 

McDermott  v.  State,  13  0.  S.  332. 

(c)  In  a  prosecution  for  rape,  where  the  state  has  given 
evidence  tending  to  prove  that  the  prosecuting  witness  had 
contracted  a  venereal  disease  from  the  defendant  by  reason  of 
his  alleged  forcible  sexual  intercourse  with  her,  evidence  that 
she  had  sexual  intercourse  Avith  others  than  the  defendant 
about  the  time  of  the  alleged  rape  is  admissible  to  show  that 
the  prosecuting  witness  might  have  contracted  the  disease 
from  some  person  other  than  the  defendant ;  but  evidence  that 
she  tried  to  have  sexual  intercourse  with  other  men  or  boys 
during  that  period  is  inadmissible  for  any  purpose. 

An^eloff  V.  State,  01   O.  S.   361,  2. 

(d)  Where  a  criminal  statute  against  seduction  extends 
its  protection  to  all  females  under  the  age  of  eighteen  years 


§139  METZLER'3    OHIO    TRIAL    EVIDENCE  184 

who  are  of  good  repute  for  chastity,  it  is  not  competent  for 
the   defendant   to   prove   specific   acts    of   illicit   carnal    inter- 
course by  the  prosecutrix  with   other  persons ;   and  he   must 
attack  her  character,  if  at  all,  by  proof  of  her  reputation. 
Bowers  v.  State,  29   0.  S.  542. 

(e)  It  is  competent  for  the  defendant  in  such  case  to  give 
in  evidence  previous  acts  of  carnal  intercourse  by  the  prose- 
cutrix with  himself,  not  to  impeach  her  character  for  chastity, 
but  to  show  that  the  criminal  act  charged  was  not  committed 
under  a  promise  of  marriage. 

Bowers  v.  State,  29   0.  S.  542. 

(f)  Where  the  defendant  offers  no  evidence  as  to  the 
reputation  of  the  prosecuting  witness,  the  state  may  not  prove 
her  reputation  for  virtue.  Before  the  state  can  introduce,  in 
rebuttal,  evidence  of  her  general  reputation  for  chastity  in 
cases  of  this  character,  the  defendant  must  offer  some  evi- 
dence assailing  the  general  reputation  of  such  witness. 

Reed  v.  State,  98  0.  S.  279. 

Cf.  Sayen  v.  Ryan,  9  C.  C.  631,  6  C.  D.  732. 

(g)  In  a  suit  for  breach  of  promise,  the  defendant  at- 
tempted to  show  by  cross-examination  of  plaintiff  (which  was 
not  objected  to),  that  plaintiff  had  been  guilty  of  unchaste 
acts  since  the  suit  was  brought.  The  plaintiff  was  allowed 
in  rebuttal  to  prove  her  good  character;  and  this  rebuttal 
was  held  proper. 

Duvall  V.  Fuhrman,  3  C.  C.  305,  2  C.  D.   174. 
Cf.  Reynolds  v.  Walker,  36   Bull.   167. 

(h)  Where  in  the  course  of  an  inquiry  into  the  general 
character  of  the  prosecutrix  for  chastity,  some  of  the  wit- 
nesses for  the  accused  spoke  of  specific  reports  of  sexual  inter- 
course between  her  and  another  individual,  no  objection  hav- 
ing been  made  to  proof  of  such  specific  reports,  it  is  not 
competent  for  the  state  by  way  of  rebuttal  to  prove  that  there 
was  no  such  improper  intercourse.  The  issue  in  such  cases  is 
not  whether  the  reputation  for  unchastity  was  deserved,  but 
whether  it  was  generally  accredited. 

McDermott  v.  State,   13  0.   S.  332. 


185  CHARACTER  §  140 

(i)  However,  it  is  competent  for  the  state  upon  cross- 
examination  to  ascertain  from  the  witnesses  their  means  of 
knowing  her  general  reputation,  and  everything  which  reflects 
upon  the  nature  and  general  prevalence  of  the  reputation 
imputed  to  her;  but  for  the  sole  purpose  of  showing  that  in 
fact  no  such  general  reputation  M'as  prevalent  in  the  com- 
munity. 

McDermott  v.  State,  13  0.  S,  332,  335, 

140.   IN  CRIMES  GENERALLY. 

(a)  Evidence  of  a  prisoner's  good  character  was  formerly 
held  to  be  admissible,  in  favorem  vitae,  in  all  cases  of  treason 
and  felony;  but  this  reason  is  now  no  longer  given,  the  true 
question  being  whether  the  character  is  in  issue.  There  is  no 
distinction  between  evidence  of  facts  and  evidence  of  char- 
acter. The  latter  is  equally  laid  before  the  jury  as  the  former, 
as  being  relevant  to  the  question  of  guilty  or  not  guilty. 

State  V.  Dickerson,  77  0.  S.  34,  54. 

(b)  Upon  the  trial  of  a  criminal  cause,  the  prosecution 
can  not  offer  evidence  to  impeach  the  general  character  of  the 
accused  until  he  has  put  it  in  issue  by  calling  witnesses  to 
prove  his  good  character. 

Griffin  v.  State,  14  0.  S.  55,  63. 

(c)  While  it  is  competent,  in  the  trial  of  one  charged  with 
having  burglars'  tools  in  his  possession  with  burglarious  in- 
tent, to  prove  the  occupation  of  the  accused  as  bearing  upon 
the  intent  with  which  he  was  carrying  the  tools,  it  is  error  to 
admit  hearsay  evidence  as  to  the  reputation  of  himself  and 
his  associates ;  as  reputation  is  not  in  issue  until  the  accused 
introduces  the  subject. 

Brown  v.  State,  13  C.  C.   (N.S.)    138. 

Cf.  State  V.  Hahn,  8  N.  P.  101,  11  0.  D.  311. 

(d)  The  term  "general  character"  is  used  to  signify  what 
would  perhaps  be  more  definitely  expressed  by  "general  repu- 
tation." The  term  "character,"  when  more  strictly  applied, 
refers  to  the  inherent  qualities  of  a  prrson  rather  than  to  any 
opinion  that  may  be  formed  or  expressed  of  him  by  others. 

Bucklin  v.  State,  20  Oh.  18,  23. 


§140  METZLER-S   OHIO    TRIAL    EVIDENCE  186 

(e)  Reputation  to  be  available  as  evidence  must  be  com- 
mon or  general  reputation,  the  crystallized  estimate  which 
people  in  general  have  formed  of  the  individual  in  the  com- 
munity where  he  has  lived. 

State  V.  Ro.Ierick.  77  O.  S.  301.  300. 
Griffin    v.    State,    14    0.    S.    oS,    <i3. 

(f)  The  evidence  as  to  character  must  necessarily,  to  some 
extent,  be  governed  by  the  particular  quality  or  trait  in 
question,  and  its  affirmative  or  negative  nature.  Those  ac- 
quainted with  the  party  would  know  how  far  and  to  what 
extent  he  had  exhibited  or  failed  to  exhibit  the  quality  or 
trait. 

Gandolfo  v.  State,  11   0.  S.   114,  117. 
Griffin    v.    State.    14    O.    S.   55,    G3. 

(g")  When  general  character  is  spoken  of  as  the  limit  to 
which  the  inquiry  is  to  be  extended,  the  expression  is  used 
rather  to  exclude  particular  transactions  than  to  require  that 
the  fact  of  the  possession  of  a  quality  or  trait  had  been  the 
subject  of  comment.  The  very  fact  that  no  comment  had 
been  heard  might  authorize  a  witness  to  say  that  his  character 
w^as  good. 

Gandolfo  v.  State,   11   O.   S.   114.   117. 

Bucklin  v.  State,  20  Oh.  18,  24. 

(h)  A  defendant  who  is  entitled  to  give  evidence  of  his 
character  for  peace  and  quietness,  is  not  limited  to  proving 
what  people  may  have  said  on  the  subject,  but  is  entitled  to 
inquire  as  to  his  character  from  those  acquainted  with  him ; 
•and  they  are  authorized  to  speak  from  his  general  peaceable 
and  quiet  conduct,  and  from  not  having  known  or  heard  any- 
thing to  the  contrary. 

Gandolfo  v.  State.  11  0.  S.   114. 

State  V.  Dickerson,  77  0.  S.  34. 

(i)  A  question  on  behalf  of  the  accused  as  to  his  reputa- 
tion for  peace  among  journeymen  painters  with  whom  he  is 
associated,  is  improper.  The  question  should  be  as  to  his 
reputation  among  those  who  knew  or  associated  with  him. 

Thurman  v.  State,  4  C.  C.   141,  2   C.  D.  466. 

(j)  It  is  not  competent  for  the  state  in  cross-examination 
of  witnesses  as  to  the  good  character  of  the  accused  as  a  quiet 


187  CHARACTER  §  141 

and  i)eaeeable  person,  to  prove  that,  prior  to  the  alleged  homi- 
cide, they  had  heard  rumors  or  reports  in  the  community  where 
he  resided  that  he  had  committed  certain  other  crimes  of 
various  character,  which  did  not  embrace  the  trait  of  character 
involved  in  homicide. 

State  V.  Dickerson.  77  0.  S.  34. 

Cf.   Allen    V.   State.   26    C.   C.    (N.S.)    254. 

(k)  But  a  witness  called  by  accused  to  testify  as  to  the 
reputation  of  the  accused  as  a  quiet,  peaceable  citizen,  may  be 
asked  on  cross-examination  if  he  had  not  heard  of  instances 
of  trouble  the  accused  had  with  his  neighbors. 

Zeltner  v.  State,   13   C.  C.    (X.S.)    417,  22  C.  D.   102. 

(1)  It  is  not  competent  to  rebut  evidence  of  good  char- 
acter by  proof  of  a  bad  local  reputation  limited  to  a  com- 
munity remote  from  the  defendant's  residence  where  he  has 
never  lived  and  where  he  is  not  shown  to  be  generally  known, 
nor  by  proof  of  reports  relating  to  particular  facts. 

Griffin  v.   State.   14   O.   S.   55. 

(m)  "Where  the  defendant  in  a  criminal  prosecution  offers 
in  his  defense  proof  of  his  jio xl  eliaracter  prior  and  up  to  the 
time  of  the  alleged  offense,  it  is  error  to  permit  the  state  to 
prove  the  defendant's  bad  character  at  a  subsequent  period. 

Wroe  V.  state,  20  O.  S.  400. 

(n)  In  cases  against  known  gamblers,  thieves,  pickpockets 
or  watch-stuffers,  the  offense  does  not  consist  of  particular 
acts,  but  in  tlie  mode  of  life,  the  habits  and  practices  of  the 
accused  in  respect  to  the  character  or  traits  which  it  is  the 
object  of  the  statute  to  suppress.  The  offense  is  proven  if  it 
is  shown  beyond  a  reasonable  doubt  that  such  is  his  general 
reputation  in  the  community. 

Morpan  v.  Nolte,  37  O.  S.  23,  26. 

Hirsoh  v.  Cincinnati,  21   ('.  C.    (N.S.)    561,  4. 

141.  IN  DEFENSE  OF  SELF-DEFENSE. 

(a)  In  a  civil  action  for  assault  and  battery  where  the 
plea  of  self-defense  is  made,  evidence  of  the  quarrelsome  char- 
acter of  the  plaintiff  and  of  his  general  rei)utation  as  a  quar- 


R  141  METZLER'S   OHIO   TRIAL    EVIDENCE  188 

relsome   and   dangerous  man   is   competent   where   such    facts 
were  known  to  the  defendant  at  the  time  of  the  assault. 

Honning  v.  P.artz.  1  C.  C.   (N.S.)    3Rn.  15  C.  D.  IT). 

Cf.  Upthegrove  v.  State,  37  0.  S.  6C2. 

(b)  And  when  the  person  accused  in  an  indictment  for 
murder  is  defending  on  the  ground  of  self-defense,  he  may 
prove  that  the  deceased  was  a  person  of  violent  and  danger- 
ous character,  and  that  such  character  of  the  deceased  was 
known  to  him  at  the  time  of  the  affray. 

State  V.  Roderick,  77  0.  S.  301. 
xMarts  V.  State,  26  0.   S.   162. 

(c)  On  the  issue  of  self-defense,  the  accused  may  show- 
that  a  few  minutes  before  the  homicide  deceased  had  a  quarrel 
with  another  person,  and  chased  him  with  a  knife  in  defend- 
ant's presence,  thus  showing  he  was  dangerous  and  that  de- 
fendant knew  it. 

Turner  v.  State,  5  C.  C.  537,  3  C.  D.  263. 

(d)  General  reputation  as  to  the  traits  of  character,  to- 
gether with  such  facts  as  are  within  the  defendant's  personal 
knowledge,  may  be  admitted;  but  particular  acts  of  which 
the  defendant  has  no  personal  knowledge  can  not  be  intro- 
duced in  evidence.  Therefore,  one  who  is  on  trial  for  shoot- 
ing with  intent  to  kill  can  not  show  that  the  prosecuting  wit- 
ness had  assaulted  another  person  with  a  knife,  and  that  he 
(the  accused)   had  been  told  of  such  murderous  assault. 

State   V.  Roderick.  77   0.   S.   301,   30S. 
Szalkai   v.   State,  flfi  0.   S.   36. 

(e)  In  general'  the  mode  of  proving  the  violent  and  dan- 
gerous character  of  the  deceased  is  by  showing  that  such  was 
the  general  reputation  of  the  deceased  in  that  community  and 
at  that  time,  and  that  such  reputation  was  knoAvn  to  the  de- 
fendant :  but  the  defendant  can  not  be  permitted  to  prove,  for 
the  purpose  of  showing  reasonable  ground  for  apprehension 
of  bodily  injury  or  loss  of  his  life,  particular  instances  of 
violence  or  viciousness  on  part  of  the  deceased,  which  did  not 
concern  the  defendant  and  at  which  the  latter  was  not  pres- 
ent and  of  which  he  has  no  personal  knowledge. 

State  V.  Roderick,  77  0.  S.  301. 
Cf.  Tliurman  v.  State,  2  C.  D.  466,  4  C.  C.  141. 


189  CHARACTER  §  143 

(f )  It  is  error  to  permit  the  state  in  the  first  instance  and 
as  a  part  of  its  ease  to  offer  evidence  to  show  that  the  de- 
ceased was  a  quiet  and  peaceable  man,  where  nothing  has 
been  shown  or  attempted  to  be  shown  by  tlie  accused  as  to 
the  reputation  of  deceased.  And  such  evidence  is  not  relevant 
to  rebut  evidence  by  the  defense  that  the  deceased  was  a 
large  and  strong  man. 

Carr  v.  State,  11  CD.  353,  21  C.  C.  43. 

142.  SOCIAL  STANDING. 

(a)  As  a  rule,  evidence  of  social  standing  is  too  remote. 

However,   there   are   several   classes   of   cases   in   which   it   is 

relevant.     Testimony  may  be  given   in   an   action   of  libel   or 

slander  tending  to   show  the   social   relations   of   the   parties, 

for  the  purpose  of  enabling  the  jury  to  determine  the  nature 

and  extent  of  the  injury. 

Fowler  v.  Chichester.  2fi  O.   S.  fl. 

riiblishinn:  Co.  V.  Valentine.  !)  C.  C.  3S7.  fi  C.  D.  323. 

Publishins  Co.  v.  Moloney,  50  0.   S.   71.   70. 

(b)  In  malicious  prosecution,   evidence   that  plaintiff  was 

a  man  of  fair  reputation  and  good  standing  in  the  community 

is  admissible,  even  though  in  refercTice  to  a  matter  occurring 

after  the  alleged  prosecution  ;  so  also   is  evidence  tending  to 

show  impairment  of  re])ntfition   by  the  prosecution.     And   in 

an  action  by  a  father  for  tlic  seduction  of  his  daughter,  the 

standing  of  the  plaintift"s  family  may  be  proved  by  him. 

Eihlert  v.  Gommoll,   13  C.  T).  580,  3   C.  C.    (N.S.)    345. 
Keplinger  v.  Sticrrick,  Wriglit,   103. 

14C.  REPUTATION  OF  THIRD  PERSONS. 

(a)  In  an  action  by  a  father  against  the  clerk  of  the  com- 
mon pleas  court  for  granting  a  license  for  the  marriage  of  his 
infant  daughter  contrary  to  the  statute,  evidence  of  the  bad 
character  of  the  husband  may  be  received  and  considered  by 
the  jury  on  the  question  of  damages. 

Larwill    V.  Kirhv.   14   Oh.   1. 

(b)  Where  a  father,  placed  u{)on  trial  for  killing  his  son, 
a  youth  of  about  sixteen  years,  contended  that  the  boy  had 


§144  METZLER'S   OHIO   TRIAL    EVIDENCE  190 

left  home  to  associate  with  immoral  women,  with  whom  he 
was  being  criminally  intimate,  and  that  the  homicide  was  acci- 
dentally committed  while  the  father  was  attempting  to  re- 
claim his  son,  evidence  of  the  character  of  such  women  is 
competent  as  reflecting  upon  the  motives  of  the  father  in 
seeking  the  son. 

Jones  V.  State,  51  O.  S.  331. 

(c)  Criminal  relations  between  the  homicide  and  the  de- 
ceased's wife  may  be  shown  as  tending  to  show  motive.  But 
in  such  case,  it  is  error  to  refuse  defendant's  evidence  of  the 
woman's  good  character  and  reputation  for  the  purpose  of 
showing  improbability  of  such  relations. 

Martin  v.  State,  9  C.  D.  621,  17  C.  C.  406. 

(d)  On  the  trial  of  a  keeper  of  a  dramshop  for  permitting 
common  prostitutes  to  resort  to  the  place,  the  evidence  must 
show  the  character  of  the  women  rather  than  the  reputation ; 
it  is  hardly  sufficient  to  prove  their  reputation  without  the 
facts  upon  which  it  is  based. 

Burns  v.  Columbus,  13  N.  P.    (N.S.)    508. 

(e)  In  a  prosecution  for  selling  liquor  in  dry  territory, 
Avhere  the  defense  is  that  the  sales  were  made  on  the  pre- 
scription of  a  physician,  the  state  may  prove  his  reputation ; 
for  the  sale  is  legal  only  when  made  on  the  prescription  of  a 
reputable  physician. 

Rogers  v.  State,  14  C.  C.    (N.S.)    177,  22  C.  D.  389. 

144.  REPUTATION  OF  THINGS. 

(a)  In  a  criminal  trial  for  keeping  a  house  of  ill-fame, 
evidence  that  the  house  was  generally  reputed  to  be  such  is 
competent  under  section  6193  of  the  General  Code. 

State  V.  Altoffer,  3  0.  D.  288,  2  N.  P.  97. 
Cf.  DeMonte  v.  Pabst,  14  0.  D.  97. 

(b)  Where  a  person  is  charged  with  contributing  to  the 
delinquency  of  a  minor  under  seventeen  years  of  age  by  rent- 
ing a  room  to  her  for  the  purpose  of  illicit  intercourse,  and 
the  testimonv  shows  that  the  minor  went  there  for  that  pur- 


191  CHARACTER  §  145 

pose,  it  is  not  error  to  permit  testimony  to  be  given  as  to  the 
reputation  of  the  house  in  which  such  room  is  located. 
Smith  V.  state,   14  C.  C.   (X.S.)   2.i7,  24  C.  D.  661. 

(c)  But  the  provision  of  the  anti-trust  law  that  "the 
character  of  the  trust  or  combination  may  be  established  by 
proof  of  its  general  reputation  as  such,"  was  held  void  be- 
cause it  prescribes  a  rule  which  violates  the  constitutional 
guaranty  that  no  person  shall  be  deprived  of  "life,  liberty 
or  property  Avithout  due  process  of  law." 

Hammond   v.   State,  7S  0.   S.    15,  22. 
See  Penn*.  Co.  v.  McCann,  54  O.  S.   10. 


145.  PROVINCE  OF  COURT  AND  JURY. 

(a)  The  reasonable  effect  of  proof  of  good  character  is  to 
raise  an  inference  that  the  accused  was  not  likely  to  have 
committed  the  crime  with  which  he  is  charged.  The  force  of 
this  inference  depends  upon  the  strength  of  the  opposing  evi- 
dence. If  the  evidence  establishing  the  charge  is  of  such  a 
nature  as  not  to  be  overcome  by  the  fact  of  good  character, 
the  latter  will,  of  course,  be  unavailing  and  immaterial. 

Harrington  v.  State,  19  0.  S.  264,  269. 

Cf.  Andrews  v.  State,  15  C.  C.    (N.S.)    241,  23  C.  D.  564. 

(b)  In  a  criminal  case  it  is  error  to  instruct  the  jury  that 
evidence  of  the  defendant's  good  character  is  not  to  be  con- 
sidered by  the  jury  or  made  available  to  the  defendant  except 
in  doubtful  cases.  The  true  and  proper  rule  is  to  leave  the 
weight  and  bearing  of  such  evidence  to  the  jury. 

Stewart  V.  State,  22  0.   S.  477. 

Donaldson   v.  State,  5   C.   D.  98,   10   C.   C.   613. 

Baum  V.  State,  6  C.  C.    (N.S.)    515,  17  C.  1).  569. 

(c)  The  question  as  to  the  weight  of  the  evidence  being 
for  the  determination  of  the  jury  and  not  of  the  court,  it  is 
not  error  for  the  court  to  refuse  an  instruction  that  testimony 
as  to  the  previous  good  character  of  the  accused  is  entitled  to 
great  weight. 

T^urns  v.   State,  75  O.   S.  407. 

Morari    v.    State.    11    C.  C.   404,   5   C.   D.   234. 


§145  METZLER'S   OHIO    TRIAL    EVIDENCE  192 

(d)  Where  evidence  of  previous  good  character  was  of- 
fered by  the  defendant,  and  the  court  included  in  its  charge 
a  statement  that  proof  of  good  character  may  of  itself  create 
a  reasonable  doubt,  where  otherwise  no  such  doubt  would 
exist,  it  was  held  that  this  was  erroneous  for  the  reason  that 
it  gave  undue  prominence' and  effect  to  such  testimony. 

State  V.  Hare,  87  0.  S.  204. 

(e)  It  is  error  to  charge  the  jury  that  proof  of  the  pris- 
oner's good  character  is  entitled  to  less  weight  where  the 
question  is  one  of  great  and  atrocious  criminality,  than  upon 
accusations  of  a  lower  grade.  The  presumption  of*  innocence 
which  it  raises  varies  in  force  with  the  circumstances,  but  not 
with  the  grade  of  the  crime  charged. 

Harrington  v.  State,   19  0.   S.  264. 

(f)  The  presumption  is  in  favor  of  good  character  and 
reputation ;  and  a  charge  to  the  jury  which  seems  to  imply 
that  if  the  accused  did  not  produce  evidence  as  to  his  good 
character,  he  thereby  did  not  claim  it,  is  erroneous. 

Brown  v.  State,   13   C.  C.    (N.S.)    138. 

(g)  Section  13662  of  the  General  Code  limits  to  ten  the 
number  of  witnesses  that  may  be  examined  as  to  reputation 
on  the  trial  of  any  criminal  case  other  than  those  for  offenses 
specially  excepted,  unless  the  payment  of  the  fees  of  those  in 
excess  of  ten  is  provided  for  by  the  party  calling  them.  This 
section  is  constitutional  and  valid ;  but  it  is  directory  only. 
And  the  action  of  the  trial  court  in  refusing  to  enforce  the 
statute  in  this  respect  is  not  subject  to  review. 

State  V.  Stout,  49  0.  S.  270. 

(h)  On  trial  for  manslaughter,  which  is  excepted  from 
the  operation  of  the  statute,  the  accused  may  call  a  witness  as 
to  his  character  without  having  designated  such  purpose  on 
the  praecipe  or  otherwise  apprising  the  state  in  advance. 

State  V.  Penn,  34  Bull.  51. 


CHAPTER  XL 

STATE  OF  MIND. 

146.  Knowledge — General  principles. 

147.  Knowledge — Similar  frauds    and   crimes. 

148.  Knowledge — Similar  accidents. 

149.  Knowledge — Similar  occurrences. 

150.  Knowledge — Reputation. 

151.  Motive — General   principles. 
lo2.  Motive — Other  crimes. 

153.  Intent — General   principles. 
lo4.  Criminal    intent    in  general. 

155.  Intent  to  kill. 

156.  Malice  in  general. 

1.57.  Malice  in  prosecutions. 

158.  Malice  in  libel   and   slander. 

159.  Mental  suffering. 

160.  Defense  of  good  faith. 

161.  Defense  of  intoxication. 

146.  KNOWLEDGE— GENERAL  PRINCIPLES. 

(a)  When  knowledge  of  a  party  at  a  certain  time  is  a 
material  fact,  the  acts  and  conduct  of  such  party  which  tend 
to  show  knowledge  at  that  time,  and  circumstances  such  as 
M^ould  have  given  him  notice,  are  relevant,  even  though  such 
facts  are  not  in  issue. 

^ee  Lindsey  v.  State,  38  O.  S.  507,  514. 

(b)  All  facts,  whether  occurring  before  or  after  the  com- 
mencement of  proceedings  in  bankruptcy,  tending  to  establish 
notice  are  competent  as  evidence  as  to  whether  the  creditor 
had  notice  or  actual  knowledge  of  the  proceedings. 

Knapp  V.  Harold,   1   C.  C.    (N.S.)    460.  1.-,  C.  D.  213. 

(c)  On  a  trial  for  subornation  of  perjury,  the  statements 
of  the  principal  in  the  absence  of  the  prisoner,  immediately 
prior  to  the  perjury,  tending  to  show  the  former's  disbelief  in 
the  facts  falsely  sworn  to,  are  admissible  to  show  the  state  of 
his  mind  and  belief  concerning  the  subject  of  his  testimony. 

Dilcher  v.  State,  42  0.  S.  174. 
193 
metzlek'.s  trial  ev. — 7 


§146  METZLER'S   OHIO   TRIAL    EVIDENCE  194 

(d)  In  an  action  against  brokers  for  embezzling  bonds, 
evidence  is  competent  which  tends  to  show  that  the  pledging 
of  the  bonds  and  use  of  the  proceeds  by  the  brokers  was  not 
due  to  an  honest  misunderstanding  by  them  of  their  rights  in 
the  matter. 

Hayes  v.  State,  14  C.  C.   (N.S.)   497,  25  C.  D.  57. 

(e)  Circulars  and  letters  sent  out  by  a  promoter  are  ad- 
missible in  an  action  to  recover  for  worthless  stock  sold,  in  so 
far  as  knowledge  is  thereby  disclosed  on  his  part  that  the 
representations  relating  to  that  particular  transaction  were 
false. 

Russell  V.  Weiler,  7  C.  C.   (N.S.)    596,  18  C.  D.  176. 

(f)  In  a  trial  for  selling  forged  bank-notes,  the  fact  that 
the  sale  was  made  at  the  rate  of  five  dollars  for  one  is  evi- 
dence of  knowledge.  But  on  a  trial  of  a  man  for  passing  a 
counterfeit,  it  was  held  that  it  can  not  be  shown  that  he  had 
proposed  to  a  contractor  two  months  before  to  pay  off  his 
hands  at  sixty  cents  on  the  dollar. 

Whitcomb  V.  State,  14  Oh.  282,  285. 

Snow  V.  State,  1  0.  D.  R.  426,  9  W.  L.  J.  420. 

(g)  Where  an  action  is  for  recovery  of  payments  made 
under  false  representations,  and  the  testimony  discloses  secret 
commissions  obtained  by  the  seller  which  should  have  been 
disclosed  to  the  buyer,  and  the  purchaser  has  elected  to  re- 
scind and  sue  for  such  payments,  such  testimony  may  be  com- 
petent, not  as  a  basis  of  recovery  for  the  commissions  so 
obtained,  but  as  reflecting  on  defendant's  good  faith  and  his 
knowledge  of  the  falsity  of  the  representations  made. 

Taylor  v.  Brown,  92  0.  S.  287. 

(h)  In  an  action  for  malicious  prosecution,  evidence  may 
be  given  that  the  plaintiff  was  a  member  of  the  same  church 
as  defendant  and  superintendent  of  the  Sunday  school,  pro- 
vided this  is  strictly  limited  to  showing  defendant's  knowledge. 

Funk  V.  Amor,  7  C.  C.  419,  2   C.  D.  541. 

(i)  On  a  question  whether  the  insured  had  notified  the 
insurer  of  other  later  insurance,  he  may  show  that  he  called 
the  insurer's  office  by  telephone  and  communicated  the  fact  to 


19.")  STATE     OF     MIND  §146 

the  person  answering  the  call,  Avithout  further  connecting  the 
insurer  with  such  person. 

iDSurance  Co.  v.  Hock,  8  C.  C.  341,  4  C.  D.  553. 

(j)  Where  the  issue  is  whether  plaintiff,  suing  on  a  red- 
line  wheat  note,  took  it  with  notice,  evidence  of  notice  to  him 
at  a  later  date  is  incompetent ;  and  his  later  admissons  that  he 
had  bought  such  notes  does  not  show  notice  at  the  time  of 
purchase. 

Loudenback  v.  Lowry,  2  C.  D.  422,  4  C.  C.  65. 

(k)  When  a  person  before  buying  a  note  sent  another  to 
the  maker  to  inquire  if  it  was  all  right,  but  was  under  no 
obligation  to  do  so,  the  maker's  declarations  in  answer  are 
not  admissible  against  the  buyer  unless,  in  fact,  communicated 
to  him. 

Bassett  v.  Avery,  15  O.  S.  299. 

(1)  Use  of  land  to  constitute  constructive  notice  of  prior 
equities  to  a  purchaser  must  be  by  acts  so  tangible  as  to  in- 
duce inquiry.  Merely  hanging  out  clothes  to  dry  on  an 
adjoining  lot  is  not  such  possession. 

Williams  v.  Spriggs,  6  0.  S.  585. 

(m)  A  notice  given  to  a  property  owner  by  a  city  to 
repair  a  defect  in  a  sidewalk  is  not,  as  matter  of  law,  notice 
to  the  city  of  any  other  defect.  And  knowledge  of  a  general 
defect  is  not,  as  matter  of  law,  notice  of  a  particular  one, 
unless  they  are  of  the  same  general  character. 

Shelby  v.  Clagett,  46  O.  S.  549. 

(n)  The  fact  that  portions  of  a  plank  sidewalk  had  been 
in  bad  condition,  due  to  the  sliding  of  an  adjacent  hillside  of 
which  the  municipality  had  notice,  does  not  as  a  matter  of 
law  amount  to  notice  of  the  defect  causing  the  injury.  But 
the  bad  condition  of  the  walk  and  that  the  city  repaired  it 
three  months  before  the  accident  is  evidence  from  which  the 
jury  might  infer  constructive  notice. 

Scrogin  V.  Cincinnati,  13  C.  C.    (X.S.)    293,  22  C.  D.  C19. 


§147  METZUER'S   OHIO   TRIAL    EVIDENCE  196 

147.  KNOWLEDGE— SIMILAR  FRAUDS  AND  CRIMES. 

(a)  Guilty  knowledge  is  an  essential  ingredient  of  some 
crimes,  such  as  passing  counterfeit  money ;  and  in  such  cases, 
the  state  may  introduce  evidence  of  similar  crimes  in  chief  to 
prove  such  knov^^ledge.  But  as  to  other  crimes,  such  as 
murder,  robbery,  and  rape,  such  evidence  is  not  admissible ; 
especially  v^^here  the  intent  is  sufficiently  proved  by  all  the 
circumstances.  However,  as  the  defendant  may  show  any 
excusing  circumstances,  he  may  give  evidence  of  his  good 
faith  and  that  he  was  ignorant  of  the  facts  that  would  make 
his  acts  criminal.  (See  Farrell  v.  State,  32  0.  S.  456.)  When 
the  accused  shows  any  such  fact,  he  opens  the  door  for  any 
collateral  evidence  tending  to  show  knowledge  that  is  ad- 
missible under  the  rules  of  evidence,  including,  it  seems,  evi- 
dence of  similar  crimes. 

See  Farrer  v.  State,  2  O.  S.  54,  75. 

(b)  In  a  prosecution  for  having  counterfeit  notes  in  pos- 
session, proof  that  similar  counterfeits  were  found  in  possess- 
ion of  the  accused  oi*  found  secreted  in  his  building  and  others 
in  his  wife's  purse  is  admissible  to  prove  guilty  knowledge, 
but  evidence  of  the  possession  of  appliances  and  materials  for 
making  spurious  coin  is  not  admissible. 

Bluff  V.  State,  10  0.  S.  547. 

Hess  V.  State,  5  Oh.  5. 

State   V.   Spring,   Tappan,   135. 

(c)  On  the  trial  of  a  person  charged  with  passing  counter- 
feit bank-notes,  it  is  competent  to  prove  that  he  was  present 
when  another  passed  a  similar  counterfeit  outside  the  state; 
for  it  tends  to  show  that  the  defendant  had  guilty  knowledge. 

Reed  v.  State,  15  Oh.  217. 

(d)  In  a  trial  for  selling  counterfeit  bills,  proof  tending 
to  connect  another  person  with  the  defendant  will  not  justify 
evidence  that  counterfeits  were  found  upon  such  other  person 
fifty  days  after  the  sale  charged,  though  such  bills  were  of 
the  same  manufacture,  if  there  is  no  evidence  of  any  associa- 
tion between  them  during  the  intervening  time. 

Griffin  v.  State,  14  0.  S.  55. 


197  STATE    OF    MIND  §147 

(e)  Ou  the  trial  of  a  person  accused  of  uttering  a  forged 
deed  with  intent  to  defraud,  other  forged  deeds  found  in  his 
possession  or  ])roved  to  have  been  uttered  by  liim,  are  com- 
petent to  show  his  guilty  knowledge. 

Lindsey  v.   State.   3S  O.   S.   507. 

(f)  And  on  trial  for  forgery,  possession  by  the  defendant 
of  other  forged  notes  running  througli  several  months  is  com- 
petent on  the  question  of  guilty  knowledge  or  intent,  whether 
such  possession  be  before  or  after  the  alleged  forgery  if 
clearly  parts  of  a  connected  scheme. 

Devere  v.  State.  .5  C.  C.  509,  3  C.  D.  249. 

(g)  On  a  trial  for  procuring  a  signature  to  a  bond  or  note 
with  intent  to  defraud,  evidence  of  previous  transactions 
which  necessarily  involve  guilty  knowledge  with  reference  to 
the  transaction  is  admissible ;  but  as  to  transactions  occurring 
after  the  one  charged,  evidence  is  not  admissible. 

Coblentz  v.   State,  84  0.   S.  235. 

(h)  But  evidence  that  one  accused  of  obtaining  money  by 
false  pretenses  had  made  like  representations  to  other  persons 
from  whom  he  had  attempted  to  obtain  money,  is  not  admis- 
sible; because  it  is  not  necessary  in  such  case  to  prove 
knowledge. 

Zuckerman  v.  State,  24  C.  C.  (N.S.)  404. 

(i)  In  an  action  to  set  aside  a  sale  on  the  ground  of  fraud, 
it  was  held  competent  to  introduce  false  representations  made 
by  the  purchaser  to  other  persons  both  before  and  after  the 
sale,  for  the  purpose  of  showing  that  there  was  fraudulent 
concealment. 

Wilmot  V.  Lyon,  7  C.  D.  305,  11  C.  C.  23S. 

(j)  Where  on  a  trial  for  false  representations,  it  becomes 
material  to  prove  that  a  conspiracy  existed,  evidence  that 
shortly  before  or  after  the  same  persons  were  engaged  in  a 
similar  conspiracy  is  competent  not  only  to  prove  the  con- 
spiracy, but  also  to  show  knowledge  of  the  falsity  of  the 
representations. 

Tarbox  v.  State,  38  O.  S.  5S1,  584. 

Jackson  v.  State,  38  0.  S.  585. 

Davis  V.  State,  20  C.  C.  430,  10  C.  D.  73vi. 


§148  METZLER'S  OHIO  TRIAL   EVIDENCE  198 

(k)  In  an  action  against  a  debtor  for  representing  himself 
insolvent  and  thereby  defrauding  his  creditor,  proof  of  repre- 
sentations made  at  the  same  time  to  others  by  which  they 
were  defrauded,  may  be  given  in  evidence  to  show  the  inten- 
tion and  bad  faith  of  the  debtor. 

Edwards  v.  Owen,  15  Oh.  500. 

Cf.   State   V.  Finney,   1    Bull.   30,  7   0.  D.  R.  22. 

(1)  However,  similar  false  representations  made  by  the 
same  person  to  others  are  admissible  in  evidence  only  for  the 
purpose  of  showing  that  they  were  known  to  be  false ;  there- 
fore, where  they  do  not  tend  to  show  such  knowledge,  they 
should  be  excluded. 

Insurance  Co.  v.  Wright,  33  0.  S.  533. 

(m)  In  cases  involving  fraud  in  receiving  stolen  goods, 
scienter  is  a  necessary  element  to  be  established  in  order  to 
fasten  guilt  upon  the  accused ;  and  in  such  cases,  evidence 
may  be  admitted  to  show  previous  transactions  which  neces- 
sarily involve  guilty  knowledge  by  the  defendant  with  refer- 
ence to  the  transaction  in  question,  such  as  knowingly  selling 
stolen  goods  at  a  former  time. 

Morris  v.  State,  8  0.  App.  27. 

(n)  Upon  a  trial  of  a  person  for  receiving  stolen  goods 
with  know^ledge  that  they  had  been  stolen,  evidence  that  other 
goods  known  to  have  been  stolen,  were  previously  received 
and  bought  by  the  defendant  of  the  same  thief,  is  admissible 
to  §how  guilty  knowledge. 

Shriedley  v.  State,  23  0.  S.  130. 

(o)  Upon  a  trial  for  knowingly  delivering  skimmed  milk 
to  a  factory  with  intent  to  defraud,  evidence  of  other  trans- 
actions of  the  same  kind  near  the  same  time  is  admissible  for 
the  purpose  of  showing  guilty  knowledge. 

Bainbridge  v.   State,  30  O.   S.  264. 
Cf.  Phelps  V.  Smith,  22  O.  S.   189. 

148.  KNOWLEDGE— SIMILAR  ACCIDENTS. 

(a)  Evidence  of  prior  similar  accidents  when  the  place 
was  in  the  same  condition  is  admissible  to  show  that  the  place 


199  STATE     OF     MIND  §148 

was  dangerous  and  defendant's  knowledge  of  the  defect,  but 
not  to  show  negligence. 

Ashtabula  v.  Bartram,  3  C.  C.  640,  2  C.  D.  372. 

Circleville  v.  Sohn,  20  C.  C.  3G8,   11  CD.  193. 

(b)  In  an  action  for  personal  injuries,  evidence  of  a  prior 
accident  of  similar  character  is  admissible  for  the  purpose  of 
showing  a  dangerous  condition,  even  though  plaintiff  relies 
upon  notice  and  a  promise  to  repair. 

Cereal  Co.  v.  Boltz,  21  C.  C.   (X.S.)   532. 

(c)  A  passenger  injured  by  a  street  car  getting  off  the 
track,  may,  to  show  notice,  prove  that  cars  went  off  the  track 
at  the  same  place  before  the  accident  while  the  condition  of 
the  track  was  the  same,  and  both  before  and  after  to  show  the 
dangerous  condition  of  the  track. 

St.  Eailway  v.  Kelley,  6  C.  C.  155,  3  C.  D.  393. 

(d)  In  an  action  against  a  city  for  an  injury  caused  by 
falling  upon  an  icy  sidewalk,  evidence  of  other  similar  acci- 
dents at  the  same  place  is  competent,  as  tending  to  show  the 
dangerous  condition  of  the  sidewalk,  and  that  its  condition 
was  brought  to  the  notice  of  the  city. 

Russell  V.  Toledo,  19  C.  C.  418,  10  C.  D.  367. 

(e)  Evidence  of  prior  accidents  at  an  unguarded  excava- 
tion is  competent  to  charge  the  city  with  notice  of  the  condi- 
tions existing  at  the  place,  without  proof  of  actual  notice  of 
such  accidents. 

Elyria  v.  Good,   17  C.  C.    (N.S.)    127. 

(f)  In  an  action  against  a  city  for  injuries  from  falling 
into  a  man-hole  alleged  to  have  been  covered  with  a  lid  which 
tilted  when  stepped  upon,  it  is  prejudicial  error  to  charge  the 
jury  that  evidence  to  the  effect  that  other  persons  had  fallen 
into  the  same  hole,  previous  to  the  accident  to  plaintiff,  could 
not  be  considered  for  the  purpose  of  showing  constructive 
notice  to  the  city  of  the  defective  and  dangerous  condition  of 
the  lid. 

Dietz  V.  Pincinnati,  25  C.  C.   (X.S.)    506.  2.S  C.  D.  3.-;0. 

(g)  Tn  an  action  for  injury  at  a  roltcn-ijjank  crossing,  a 
witness  may  testify  that  six  months  before  he  had  caught  his 


§149  METZLER'S   OHIO   TRIAL   EVIDENCE  200 

foot  in  the  same   place   where   the   injured   man's   foot  had 
caught,  and  that  his  horse  had  caught  its  foot  there  six  years 
before,  and  that  he  then  noticed  such  defects. 
Railway  v.  Beall,  6  C.  D.  250,  13  C.  C.  605. 

(h)  When  defendant's  witnesses  testified  that  the  cross- 
ing was  in  fair  condition,  it  is  proper  on  cross-examination  to 
show  that  other  wagons  had  broken  down  on  the  crossing  as 
did  the  decedent's,  for  this  tends  to  prove  the  company's 
knowledge  of  its  condition. 

Railway  v.  Dooley,  13  C.  C.    (N.S.)    225,  22  C.  D.  655. 

See  Index   for   "Similar   Occurrences"  under   "Relevancy." 

(1)  Under  the  rule  which  permits  plaintiff  to  prove  that 
other  accidents  have  occurred  under  like  circumstances,  it  is 
competent  for  a  defendant  to  prove  that  during  the  operation 
of  a  machine  for  many  years  no  accidents  have  occurred. 

Hoppe  V.  Parmalee,  20  C.  C.  303,  11  CD.  24. 

(j)  In  an  action  to  recover  damages  for  injuries  received 
in  alighting  from  a  train  at  an  unsafe  station,  it  was  held 
error,  where  the  danger  was  not  obvious,  to  exclude  testimony 
that  in  its  use  for  a  long  time  in  the  same  condition  no  simi- 
lar accident  had  happened. 

Railroad  v.  Anderson,  21  C.  C.  288,  11   C.  D.  765. 

149.  KNOWLEDGE— SIMILAR  OCCURRENCES. 

(a)  An  employe  suing  his  employer  for  injury  arising 
from  the  defective  construction  of  a  machine  operated  by  him, 
may  show  prior  similar  occurrences  while  it  was  operated  by 
another,  as  shoAving  its  defective  character  and  the  employer's 
knowledge  thereof,  but  not  as  showing  defendant's  negligence. 

Brewing  Co.  v.  Bauer,  50  0.  S.  560. 

(b)  "Where  in  an  action  for  injuries  in  an  elevator  shaft, 
it  is  claimed  that  the  latch  was  out  of  order  and  the  door  was 
open,  it  is  admissible  to  show  on  previous  occasions  the  door 
had  rebounded  when  it  was  pushed  shut,  as  tending  to  show 
defective  condition  and  defendant's  knowledge  thereof. 

Building  Co.  t.  Klussman,  2  C.  C.   (N.S.)   83,  15  C.  D.  728. 


201  STATE     OF     MIND  §150 

(c)  As  a  city  is  liable  for  injury  to  a  traveler  by  an 
authorized  excavation  in  the  street  which  is  left  unguarded, 
it  follows  that  evidence  that  there  were  no  lights  at  the  exca- 
vation for  several  previous  nights  is  properly  excluded; 
because  the  knowledge  of  the  city  authorities  is  immaterial. 

Gable  v.  Toledo,  9  C.  D.  63,  16  C.  C.  515. 

(.d)  In  an  action  under  Section  5838  of  the  General  Code 
for  injuries  by  a  dog,  evidence  that  the  dog  had  previously 
bitten  another  and  that  the  defendant  knew  it,  is  not  admis- 
sible :  because  proof  of  knowledge  of  its  vicious  habits  is  not 
necessary. 

Kleybolte  v.  Buffon,  SO  O.  S.  61. 

Mehmert   v.  Kelso,  6  0.   App.  Ofl.  26  C.  C.   (X.S.)    350. 

Cf.   Eumbaugh  v.  McCormick,  80  O.   S.  211. 

Cf.  Tuttle  V.  Fiiri,  22  C.  C.    (N.S.)    388,  391, 

150.  KNOWLEDGE— REPUTATION. 

(a)  In  an  action  for  malicious  prosecution,  the  plaintiff's 

good  reputation  and  defendant's  knowledge  thereof  may  be 

given  in  evidence  in  chief  for  the  purpose  of  showing  want  of 

probable  cause.     And  where  the  plaintiff  and  the  defendant 

reside  in  the  same  neighborhood,  such  evidence  tends  to  show 

defendant's  knowledge. 

Funk  V.  Amor.  2  C.  D.  541,  4  C.  C.  271. 
Miles  V.  Salisbury,  21   C.  C.  333,  12  C.  D.  7. 

(b)  When  evidence  has  been  given  to  show  that  the  buyer 
of  liquor  Avas  in  the  habit  of  getting  intoxicated,  and  that  he 
resided  in  the  neighborhood  of  the  seller,  it  is  proper  to  show 
the  buyer's  reputation  in  that  respect  as  tending  to  prove  the 
seller's  knowledge  of  such  habit. 

Adams  v.  State,  25  0.  S.  584. 

(c)  But  the  seller  may  .show,  to  rebut  evidence  of  knowl- 
edge, that  shortly  prior  to  the  time  of  the  alleged  unlawful 
sale,  he  made  inquiry  of  persons  well  acquainted  with  the 
buyer  whether  he  was  a  person  in  llie  habit  of  getting  intoxi- 
cated, and  also  may  show  what  information  he  obtained  from 
such  i)ersons. 

Crabtree  v.   State,  30  O.   S.  382. 


§151  METZLER'S  OHIO  TRIAL  EVIDENCE  202 

(d)  Knowledge  on  the  part  of  the  defendant  landlord  that 
his  property  was  used  for  the  purposes  of  gaming  may  be 
proved  by  evidence  that  the  fact  of  its  being  so  used  was  a 
matter  generally  known  and  talked  about  and  of  common 
reputation  in  the  community  where  he  resided. 

Trout  V.  Marvin,  14  C.  D.  333,  2  C.  C.   (N.S.)   523. 

(e)  In  an  action  against  a  railway  company  for  personal 
injuries,  it  is  proper  to  prove  that  the  general  reputation  of 
the  fireman,  who  operated  the  engine  so  as  to  cause  the  injury, 
was  that  he  was  a  rough  man  with  an  engine,  for  the  pur- 
pose of  showing  that  the  defendant  had  knowledge  of  such 
incompetency. 

Railway  v.  Thompson,  21   C.  C.  778,  12  C.  D.  326. 
Cf.  Insurance  Co.  v.  May,  20  Oh.  211,  224. 

(f)  But  evidence  that  the  financial  condition  of  a  com- 
pany was  known  and  talked  about  on  the  exchange,  in  the  oil 
market  and  generally,  is  incompetent  to  show  plaintiff's 
knowledge,  unless  it  is  shown  that  it  was  mentioned  in  his 
hearing. 

Cable  V.  Bowlus,  21  C.  C.  53,  11  CD.  526. 


151.  MOTIVE— GENERAL  PRINCIPLES. 

(a)  It  is  a  general  rule  that  the  motive  with  which  a 
lawful  act  is  done  is  not  relevant.  In  considering  the  conduct 
of  the  parties,  the  motives  with  which  they  acted  are  im- 
material, if  it  appears  that  they  were  in  the  exercise  of  a  clear 
legal  right  or  in  the  performance  of  a  duty.  But  when  there 
is  a  question  whether  an  illegal  act  was  done,  by  any  person, 
any  fact  which  supplies  a  motive  for  such  an  act  is  relevant. 

Moulders'  Union  v.  Greenwald  Co..  4  N.  P.    (N.S.)    161,  16  0.  D.  678. 
Volksblatt  Co.  v.  Hoffmeister,  62   0.  S.   189,   198. 
Simper  v.  Carroll,  12  C.  C.    (N.S.)    140,  21  C.  D.  386. 
Cleveland  v.  Baker,  25   C.  C.    (N.S.)    369,  4  O.  App.  68. 
See   Stephen's   Digest,   Art.   7. 

(b)  A  copy  of  charges  against  defendant  in  a  Masonic 
lodge  are  admissible  against  him  on  trial  for  homicide,  if  it 
tends  to  show  a  motive  for  the  killing.    And  the  criminal  rela- 


203  STATE    OF    MIND  §152 

tions  between  the  accused  and  the  deceased's  wife  may  also 
be  shown  as  tending  to  show  motive. 

^rartin  v.  State,  9  C.  D.  621,  17  C.  C.  406. 

Cf.  State  V.  Nevin,  23  Bull.  411. 

(c)  Where  an  act  is  given  in  evidence  to  show  the  motive 
which  actuated  the  parties,  it  is  proper,  as  a  general  rule,  to 
permit  the  parties  affected  to  show  the  immediate  circum- 
stances; otherwise  the  real  object  of  inquiry  may  not  be 
ascertained. 

Rufer  V.  State,  25  0.  S.  464. 

152.  MOTIVE— OTHER  CRIMES. 

(a)  "While  the  general  rule  is  that  a  distinct  crime,  in  no 
way  connected  with  that  upon  which  the  defendant  stands 
indicted,  can  not  be  given  in  evidence  against  him  on  the 
trial,  this  rule  is  not  applicable  to  a  case  in  which  it  is  clearly 
shown  that  a  connection  in  the  mind  of  the  defendant  must 
have  existed  between  the  offense  charged  and  others  of  a 
similar  nature.  When  such  connection  exists,  evidence  of 
such  '^ther  offense  is  admissible,  not  for  the  purpose  of  raising 
a  presumption  of  guilt  on  the  hypothesis  that  a  man  who 
commits  one  crime  will  probably  commit  another,  but  for  the 
purpose  of  showing  a  motive  or  purpose  prompting  the  com- 
mission of  the  offense  laid  in  the  indictment ;  and  when  com- 
petent for  this  purpose,  it  can  not  be  properly  excluded  on  the 
ground  that  it  tends  to  prove  the  commission  of  other  and 
distinct  offenses. 

Brown  v.  State,  26  0.  S.  176.   181. 
Boyd   V.  State,   SI   O.  S.  239,  242. 

(b)  While  it  is  not  competent  for  the  state  in  chief  to 
introduce  evidence  of  other  and  prior  crimes  to  support  the 
charge  or  reflect  on  the  character  of  the  accused,  yet  the  com- 
mission of  a  prior  crime  may  be  shown  for  the  purpose  of 
furnishing  a  motive  for  the  commission  of  the  crime  charged 
in  the  indictment,  provided  such  prior  crime  is  so  related  to 
the  latter  as  to  have  a  logical  connection  therewith,  and  rea- 
sonably to  disclose  a  motive  for  its  commission. 

State  V.  Dickerson,  77  0.  S.  34. 


§153  METZLER'S    OHIO    TRIAL    EVIDENCE  204 

(c)  Where  the  offense  charged  was  that  of  unlawfully 
injuring  horses  for  the  purpose  of  making  money  by  getting 
the  horses  for  treatment,  it  was  proper  to  show  that  the  de- 
fendant repeatedly  predicted  a  new  epidemic  disease  among 
horses ;  and  that  aboui  the  same  time  a  number  of  other 
horses  in  the  same  village  were  injured  in  the  same  way, 
which  horses  the  defendant  examined  and  declared  they  had 
the  new  disease. 

Brown  v.  State,  26  0.  S.  176,  181. 

(d)  Proof  that  the  defendant,  prior  to  the  commission  of 
the  alleged  crime  of  murder,  had  seduced  the  deceased,  is 
incompetent,  unless  it  affirmatively  appears  that  such  seduc- 
tion was  in  some  way  connected  with  said  crime  as  motive 
therefor  or  otherwise. 

Hose  V.  State,  7  C.  D.  226,  13  C.  C.  342. 

153.  INTENT— GENERAL  PRINCIPLES. 

(a)  When  the  intent  of  a  party  is  a  part  of  the  matter  in  . 
issue,  evidence  may  be  given  of  his  acts  and  conduct  not  in 
issue,  if  they  tend  to  establish  his  intent  in  doing  the  act  in 
question. 

(b)  The  intent  to  deliver  a  deed  may  be  shown  by  the  acts 
of  the  parties  preceding,  attending  and  subsequent  to  the 
acknowledgment  of  the  instrument. 

Dukes  V.  Spangier,  35  0.   S.   110. 

(c)  Intention  as  relates  to  trade  fixtures  is  to  be  deduced 
from  mode  of  attachment  to  the  realty,  the  character  of  the 
article  and  the  purpose  for  which  it  was  put  in  place. 

Star  Co.  V.  Mihalovitch  Co.,  0  X.  P.    (X.S.)   21S,  7  O.  L.  U.  77. 

(d)  The  intention  to  abandon  an  easement  may  be  ascer- 
tained from  all  the  acts  and  declarations  of  the  parties  to- 
gether with  the  surrounding  circumstances. 

Tudor  Co.  V.  Greenwald,  16  C.  D.  556,  5  C.  C.    (X.S.)    37.  30. 

(e)  Where  a  parent  sends  his  son  to  a  school  under  an 
oral  contrac*  with  the  principal  of  such  school  and  pays  tui- 
tion for  part  of  a  year  at  the  time  the  son  enters,  the  intent 
of  the  parties  as  to  the  length  of  the  term  of  the  contract 


205  STATE    OF    MIND  ^153 

must  be  determined  from  all  the  facts,  words,  acts,  conduct, 
and  circumstances,  surrounding  the  parties  at  the  time. 
GroflF  V.  Hertenstein.  12  C.  C.    iX.S.)    r-.ir,.  21   C.  ri.  m. 

(f)  Where  a  man  deeds  property  to  his  wife,  and  after- 
ward a  creditor  secures  a  judgment  against  him  and  sues  to 
set  aside  the  deed,  and  on  the  trial  the  creditor  gives  evidence 
to  show  an  intent  to  defraud,  it  is  proper,  to  rebut  such 
intent,  for  the  grantor  to  prove  that  he  had  promised  the  deed 
to  his  wife  a  year  before,  and  before  the  creditor's  cause  of 
action  had  accrued. 

Evans  v.  Lewis,  30  0.  R.  11. 

(g)  The  declarations  of  a  testator  made  before  or  after 
the  making  of  a  will,  if  made  near  such  time,  are  admissible 
to  prove  the  state  of  mind  of  the  testator,  but  not  to  prove 
undue  influence.  The  declarations  are  not  of  themselves  alone 
sufficient  to  establish  the  execution  of  a  lost  or  destroyed  will ; 
but  they  are  admissible  in  evidence,  and  have  great  weight 
when  corroborated  by  other  evidence. 

Boepple  V.  Mollert,  24   C.  C.    (X.R.)    400. 
Kortifield   V.   Koinfield.  22   C   C.    (N.S.)    363. 

(h)  The  intention  of  revocation  of  a  will  is  presumed 
when  it  was  once  known  to  exist  and  to  have  been  in  the  cus- 
tody of  the  testator  and  can  not  be  found  after  his  death. 
And  the  declarations  of  intention  made  by  the  testator  after 
the  making  of  the  will  may  be  given  in  evidence  for  the  pur- 
pose of  strengthening  or  weakening  the  presumption  of  revo- 
cation. 

Bflirens  v.  BeTirons.   47   O.   P.   3"3. 

Gurley  v.   Armentraut.  0   C.  C.    (X.S.)    ir.fi,   17   T.  D.   100. 

(1)  AVhere  a  party,  in  order  to  show  the  intention  of  the 
drawer  of  a  check,  offers  to  show  the  circumstances,  he  will 
not  be  allowed  to  prove  a  portion  of  the  facts  occurring  at 
the  time  of  the  draAving  of  the  check,  and  tlien  insist  upon 
excluding  other  material  facts  occurring  at  the  same  time 
tending  to  disprove  sudi  intention. 

Dodge   V.   Bank,   30  0.   S.   1. 


§154  \'ETZLER'S   OHIO    TRIAL    EVIDENCE  206 

154.  CRIMINAL  INTENT  IN  GENERAL. 

(a)  Where  the  guilt  of  a  person  depends  upon  the  intent 
Avith  which  the  act  was  done,  collateral  facts  in  which  he  bore 
a  part  and  other  similar  acts  which  tend  to  establish  such 
intent  are  admissible  in  evidence. 

(b)  In  assault  with  intent  to  rape,  the  intent  to  use  what- 
ever force  might  be  necessary  to  overcome  resistance  may  be 
shown  by  the  conduct  and  acts  of  the  accused  at  the  time  of 
tlie  occurrence  or  immediately  thereafter. 

Patterson  v.  State,  11  C.  D.  602. 

(c)  In  proving  a  corrupt  intent  where  an  indictment 
charges  the  solicitation  of  a  bribe,  other  similar  offenses  tend- 
ing to  show  the  corrupt  course  of  dealing  of  a  public  official 
may  be  shown  as  tending  to  prove  the  specific  corrupt  intent 
charged. 

Ptate  V.  Davis,  90  0.  S.  100. 

CI.  Knight  V.  State,  54  0.  S.  365. 

(d)  When  the  crime  charged  is  the  making  of  a  false 
receipt  for  the  payment  of  money  with  intei-t  to  defraud, 
evidence  of  similar  offenses  or  transactions  by  the  defendant 
is  competent  as  tending  to  show  the  motive  or  intent  with 
which  the  receipt  in  question  was  made,  altered  or  forged. 
and  its  use  in  connection  with  other  instruments  forged  by 
the  defendant. 

Lin.irafeltcr  v.  State.   8  C.  C    (N.S.)    .537.   IS  C.  D.  SOO. 

(e)  On  the  trial  of  defendant  for  cutting  timber  without 

the   owner's   consent,   evidence   is   competent   that   on   a  prior 

arrest  for  so  doing  the  defendant  had  agreed  that  he  would 

not  do  so  again  ;  for  it  shows  absence  of  right  and  also  intent 

in  going  on  the  land. 

Champion  v.  State,  6  C.  D.  777,  9  C.  C.  627  . 
Cf  Telegraph    Co.  v.  Smith,   64  O.  S.   106. 

(f)  But  on  the  trial  of  a  person  charged  Avith  an  assault 
with  intent  to  rob,  it  is  error  to  admit  testimony  on  behalf  of 
the  state  tending  to  prove  the  defendant  guilty  of  other  as- 
saults, whether  with  or  without  like  intent. 

Coble  V.  State,  31  0.  S.  100. 


2X)7  STATE    OF    MIND  §155 

(g")     And   on   a   trial   for  stealing   a   horse   and   buggy   by 

driving  away  with  them,  it  is  not  relevant  to  show  that  the 

accused  had  just  before  stolen  money  and  had  it  with  him. 

Such  independent  crime  has  no  legal  tendency  to  prove  intent. 

Barton  v.  State,  18  Oli.  "Z-:!.  •223. 

C  f.   Clieney   v.   State,   7    Oli.    pt.    1,  222. 

(h)  When  evidence  of  other  offenses  of  a  similar  character 
is  competent  to  jirove  intent,  and  the  accused  has  not  thereto- 
fore been  convicted  of  such  offenses,  the  burden  is  upon  the 
state  to  prove  that  the  accused  is  guilty  of  such  other  offenses 
by  the  same  degree  of  ])r()of  as  is  required  in  all  criminal 
cases.  And  when  such  evidence  is  properly  admitted  to  prove 
intent,  it  is  the  duty  of  the  trial-court,  at  the  time  such  evi- 
dence is  offered,  to  instruct  the  jury  as  to  the  purpose  for 
Avhich  it  is  admitted. 

Baxter  v.  State,  01   0.  S.   167. 

155.  INTENT  TO  KILL. 

(a)  As  a  general  rule  it  is  presumed  that  a  rational  man, 
being  free  to  choose  and  capable  of  choosing  between  right 
and  wrong,  intends  the  natural  consequences  of  his  voluntary 
act.  And  the  intent  to  kill  is  proved  by  what  the  accused 
does  and  says,  the  manner  of  inflicting  the  wound,  the  instru- 
ment used  and  its  tendency  to  destroy  life;  if  |)alpably  calcu- 
lated to  take  life  it  may  be  presumed  he  so  intended. 

Carr  v.  State,  11   C.  J).  35.3,  21   C.  C.  43. 
Davis  V.  State,  25  O.   S.  360. 

(b)  So  when  the  intentional  use  of  a  deadly  weapon  re 
suiting  in  death  is  shown,  and  the  circumstances  of  the  homi- 
cide are   not   explained   by  the  slayer  and   do   not   otherwise 
appear  in  evidence,  the  jury  may  infer  both  malice  and  intent 
to  kill. 

Bailna   v.   State,    lO   C.   C.  220,   8  C.   I).   520,   537. 
Erwin    v.    State,   20    O.    S.    ISO,    I'll. 

(c)  But  where  death  is  caused  l)y  the  use  of  a  deadly 
weai)on,  and  tlic  circiimstaiices  of  the  killing  ai"e  detailed  to 
the  jury,  some  of  which  tend  to  disprove  a  malicious  or  inten- 


§  15G  METZLER'S   OHIO   TRIAL    EVIDENCE  208 

tional  killing,  the  presence  of  malice  or  intent  to  kill  must  be 
determined  from  all  the  circumstances. 

Erwin  V.  State,  29  0.  S.  186,  ini. 

]5ailiis  V.  State,   IG  C.  C.  22(),  8  C.  D.  526,  537. 

Munday  v.  State,   16  C.  1).  712,  5  C.  C.    (N.S.)    656,  662. 

(d)  In  order  to  justify  a  conviction  of  murder  in  the 
second  degree,  it  must  be  proved  affirmatively  that  the  ac- 
cused ])ur]iose]y  killed  the  deceased;  to  show  that  he  pur- 
jiosely  inflicted  the  wound  that  caused  the  death,  or  that  he 
])urposely  struck  the  deceased,  from  which  stroke  the  deceased 
died,  is  not  sufficient.  It  follows,  therefore,  that  it  is  error 
to  charge  the  jury  to  the  effect  that,  if  the  proof  shows  that 
defendant  purposely  committed  the  act,  the  natural  and  prob- 
able consequence  of  which  was  to  and  did  cause  the  death  of 
the  deceased,  evidence  on  behalf  of  the  defendant  tending  to 
show  that  he  did  not  in  fact  intend  to  kill  the  deceased  is 
immaterial. 

Mnnday  v.  State,  5  C.  C.   (X.S.)   656,  16  C.  D.  712. 


156.   MALICE  IN  GENERAL 

(a)  In  a  trial  for  murder  in  the  second  degree,  the  state 
may  prove  previous  threats  made  by  the  defendant  against 
the  person  he  afterwards  killed,  in  order  to  show  that  the  kill- 
ing, was  malicious. 

Stewart  v.  State.   1   O.  S.  66. 

(b)  Declarations  of  a  defendant  charged  with  assault  and 
battery  tending  to  show  express  malice  in  the  defendant,  are 
admissible  in  evidence,  even  though  they  were  made  after  the 
attack. 

Klein  v.  Thompson,   19  O.  S.  560,  571. 

(c)  In  an  action  for  selling  liquor  to  a  husband,  sales 
made  after  tlie  commencement  of  the  action  may  be  given 
in  evidence  to  throw  light  upon  the  mind  of  the  defendant 
and  as  bearing  on  exemplary  damages. 

Bean  v.  Greon,  .33  O.  S.  444. 

(d)  Where  a  -wife  has  separated  from  her  husband  and  is 
living   with   her   parents,   and   in   an    action   by   the   husband 


209  STATE     OF     MIND  §157 

against   such   parents,  the   question   is   whether   she   is  there 
voluntarily  or  by  their  malicious  interference,  evidence  is  com- 
petent to  shoAv  that  they  have  knowingly  encouraged  her  to 
associate  vUh  disreputable  persons. 
Holtz  V.  Dick,  42  0.  S.  z3. 

(e)  In  an  action  to  recover  damages  for  a  wrongful  act 
which  involves  the  ingredients  of  fraud,  malice  or  insult,  the 
defendant  may,  to  rebut  malice  and  mitigate  punitive  dam- 
ages, show  all  facts  and  circumstances  which  tend  to  explain 
or  disclose  his  motives  and  design. 

Roberts  v.  Mason,  10  O.  S.  277. 
Simpson  V.  McCaflrey,   13  Oh.  508,  522. 

(f)  "Wliere  exemplary  damages  are  sought  in  an  action  to 
recover  damages  for  personal  injuries  sustained  by  being 
bitten  by  vicious  dogs  kept  by  the  defendant,  it  is  error  to 
exclude  testimony  tending  to  prove  that  the  defendant  was 
not  wanton  or  reckless  in  his  manner  of  keeping  the  dogs. 

Thomas  v.  Boyson,  21   C.  C.  302,  11   C.  T>.  773. 

(g)  In  an  action  against  a  telegraph  company  by  the 
owner  of  a  farm  for  the  wrongful  cutting  of  shade  trees 
growing  along  a  highway  Avhich  passes  through  it,  an  oral 
license  from  a  tenant  not  authorized  to  give  it,  if  acted  upon 
in  good  faith,  and  the  instructions  of  the  company  to  its 
servants  with  respect  to  the  manner  of  trimming  trees  along 
its  line,  if  given  in  good  faith,  are  competent  to  defeat  or 
mitigate  the  recovery  of  exemplary,  but  not  compensatory, 
damages. 

Telegraph   Co.  v.   Smith,  64  O.   S.   106. 

Cf.  Cliampion  v.  State,  6  C.  D.  777,  9  C.  C.  627. 

157.  MALICE  IN  PROSECUTIONS. 

(a)  Where  malice  is  an  essential  ingredient  of  a  tort  or 
an  offense,  such  as  malicious  prosecution  or  malicious  destruc- 
tion of  prop -'ty,  evidence  that  the  defendant  act^-d  on  legal 
advice  is  admissible  to  show  absence  of  malice. 

Eihlert  v.  Gummoll,  3  C.  C.    (N.S.)    345,  13  C.  D.  586. 

Adams  v.  State,  11  N.  P.    (N.S.)    11,  25  O.  D.  77. 


§  158  METZLER'S   OHIO   TRIAL    EVIDENCE  210 

(b)  Probable  cause  does  not  depend  on  the  actual  state  of 
the  case,  but  on  the  honest  and  reasonable  belief  of  the  party 
prosecuting.  And  the  advice  of  a  magistrate  on  a  full  state- 
ment of  facts  may  "be  proved  in  order  to  show  good  faith, 
rebut  malice  and  mitigate   damages. 

White  V.   Tucker,    16   0.   S.   468. 

(c)  In  order  to  show  probable  cause,  the  defendant  is 
not  confined  to  the  transactions  of  plaintiff  alone,  but  evi- 
dence of  the  acts  of  associates  of  the  plaintiff  tending  to  give 
defendant  a  belief  of  the  plaintiff's  guilt,  is  relevant. 

Johnson  V.  Corrinpton,  3  Bull.   1130,  7  0.  D.  R.  572. 
John  V.  Bridgman,  27  0.  S.  22,  42. 

158.  MALICE  IN  LIBEL  AND  SLANDER. 

(a)  In  a  suit  for  defamation,  evidence  of  actionable  words 
or  distinct  libels  not  declared  on,  is  competent  to  show  malice ; 
but  they  can  not  be  made  the  foundation  for  a  recovery  of 
damages.  They  can  aft'ect  the  damages  only  by  showing  the 
degree  of  the  malice  in  the  publication  of  the  words  or  libel 
declared  on.  Falsity  of  the  libel  may  also  be  shown  for  the 
same  purpose. 

Van  Derveer  v.  Sutphin,  5   0.  S.  293. 

Alliance  Co.  v.  Valontine,  9   C.   C.  387,  6   C.  D.  323. 

(b)  In  an  action  of  slander,  the  plaintiff  may  give  evi- 
dence of  the  speaking  of  other  words  or  the  speaking  of  the 
same  words  after  the  action  is  brought,  to  prove  the  mali- 
cious intent  with  which  the  slanderous  words  stated  in  the 
declaration   were  uttered   by   the   defendant. 

Stearns  v.  Crx,   17  Oh.  .5flO. 
Alpin  V.   Morton,   21    O.   S.  536. 

(c)  When,  at  the  trial  of  an  action  for  libel,  the  plain- 
tiff has  given  evidence  tending  to  show  a  right  to  recover 
punitive  damages,  evidence  by  the  defendant  as  to  his  feel- 
ings toward  plaintiff,  and  his  motives  in  the  publication,  is 
competent   as   bearing    upon    the    question    of   such    damages, 

ITenn  v.  Horn,  56  O.  R.  442. 

See  Section  6319-4,  General  Code. 


211  STATE     OF     MIND  §160 

(d)  In  an  action  of  slander,  it  is  competent  for  the  defendant 

under  the  general  issue,  in  mitigation  of  damages  and  to  rebut 

malice,  to  prove  facts  connected  with  the  speaking  of  the  words 

Avhich  werp  from  their  nature  calculated  to  induce  belief  on  his 

part ;  provided  such  proof  does  not  establish  a  justification. 

Reynolds  v.  Tucker,  6  0.  S.  516,  518. 
Dewitt  V.  Greenfield,  5  Oh.  225,  226. 

(e)  In  a  libel  ease  under  the  general  issue,  defendant  may 
show  a  common  report  in  circulation  prior  to  the  publication 
that  the  plaintiff  was  guilty,  but  only  to  rebut  the  presumption 
of  malice;  and  for  the  same  'purpose  particular  facts  or  circum- 
stances calculated  to  mislead  the  defendant  are  competent 
whether  the  evidence  tends  to  prove  the  charge  or  not. 

Van  Derveer  v.   Sutphin.  5   0.  S.  20.3. 

Hilbrant  v.   Simmons,    18   C.   C.    123,   9   C.   D.   566. 

See  Section  6319-4,  General  Code. 

159.  MENTAL  SUFFERING. 

(a)  One  bitten  by  dogs  may  testify  as  to  meiital  suf- 
fering through  fear  of  hydrojiliobia  and  lockjaw  ;  and  an  in- 
struction to  the  jury  tliat  recovery  may  be  had  on  this  ac- 
count does  not  cure  the  error  in  excluding  the  evidence. 

Heintz  v.  Caldwell,  9  C.  D.  412,  16  C.  C.  630. 

(b)  In  an  action  for  false  arrest,  the  plaintiff  may  testify 
as  to  the  effect  of  the  arrest  upon  his  mental  and  nervous 
condition.  And,  in  an  action  for  wrongful  ejectment  from  a 
street-car,  the  plaintiff  may  testify  as  to  what  effect  the  act 
had  upon  his  feelings.  His  sense  of  humiliation  is  material 
to  the  issue. 

Simper  v.  Carroll.  12  C.  C.   (N.S.)    140,  21  C.  T).  386. 
Traction,  etc.,  Co.  v.  Peterson,   18  C.  C.   (N.S.)   242. 

160.  DEFENSE  OF  GOOD  FAITH. 

(a)  Where  a  person  does  an  act  apparently  criminal,  but 
in  fact  under  circumstances  that  tend  to  show  a  want  of  guilty 
intention,  the,  .excusing  circumstances  may  be  given  'n  evidence 
to  show  his  good  faith  wliere  that  is  material,  or  that  he  was 
ignorant  of  the  facts  that   would  malce  Ills  acts  criminal. 

Farrcll  v.  Stato,  32  0.  S.  456. 


§161  METZLER'S   OHIO   TRIAL    EVIDENCE  212 

(b)  In  a  trial  for  abortion,  evidence  was  introduced  to 
show  that  a  second  physician  was  called  to  administer  the 
anaesthetic ;  that  on  finding  the  foetus  to  be  alive  and  that  a 
miscarriage  Avas  not  necessary  to  preserve  the  woman's  life, 
the  physician  immediaiely  desisted  and  directed  that  she  be 
restored  to  consciousness.  This  was  held  proper  to  show 
absence  of  criminal  intent. 

State  V.  Tippie,  89  O.  S.  35. 

(c)  "While  a  custom  among  contractors  of  helping  them- 
selves to  each  other's  material  when  a  small  quantity  is  needed 
to  complete  a  job,  is  unreasonable  and  not  binding  as  a  rule  of 
property,  it  is  competent  for  the  purpose  of  tending  to  prove 
a  lack  of  criminal  intent  in  taking  such  material. 

Kuhl  Co.  V.  Mack,  12  C.  D.  177,  17  C.  C.  663. 

IGl.  DEFENSE  OF  INTOXICATION. 

(a)  Intoxication  is  no  defense  to  a  prosecution  for  crime; 
but  in  some  cases  evidence  of  intoxication  is  admissible  to 
show^  that  no  crime  has  been  committed,  or  to  show  the  degree 
or  grade  of  crime.  It  is  only  allowed  to  rebut  guilty  knowledge, 
deliberation  and  premeditation  or  an  intent  requiring  nice  dis- 
crimination, and  shouUl  go  no  further. 

Cline  V.  State.  43  0.  S.  3.32. 
Nichols  V.   State,  8  O.  S.  435,  439. 

(b)  Drunkenness  not  amounting  to  insanity  is  of  little 
weight  in  second  degree  murder,  unless  it  is  so  great  as  to 
show  incapacity  to  form  a  purpose  or  intention  so  to  act.  or 
unless  it  caused  or  was  connected  with  a  sudden  quarrel. 

Davis  V.  State,  25  0.  S.  369,  373. 

(c)  In  L  prosecution  for  maliciously  shooting  wi!h  intent 
to  wound,  evidence  that  the  defendant  was  so  much  intoxi- 
cated that  he  could  not  form  or  have  such  intent  is  admissible. 
In  a  capital  case,  w^here  the  defense  was  that  the  homicide 
was  committed  while  the  accused  Avas  suffering  from  delirium 
tremens,  it  was  held  that  evidence  of  a  general  reputation  of 
the  prisoner  zs  being  a  drunkard  is  not  admissible. 

Cline  V.  State,  43  0.  S.  332. 
State   V.   Kirves,  Iddings,  9. 


213  STATE     OF     MIND  §161 

(d)  In  a  proseention  for  perjury  in  reference  to  a  past 
transaction,  the  accused  may  show  that  at  the  time  of  such 
transaction  he  was  greath'  intoxicated  as  tending  to  show  that 
his  testimony'  was  not  knowingly  false. 

Lytle  V.  state,  31   0.  S.   106. 

(e)  Drunkenness  of  the  accused  at  the  time  of  passing  a 
counterfeit  bill  is  a  circumstance  proper  to  be  submitted  to 
the  jury,  and  should  have  its  just  weight  iu  determining 
whether  the  accused  knew  the  bill  to  be  counterfeit. 

Pigman  v.  State,  14  Oh.  555. 


CHAPTER  XII. 
HEARSAY, 

162.  General   rule — Illustrations. 

163.  Written  hearsay. 

164.  Exceptions  to  the  rule. 

165.  Words  in  issue. 

166.  Information  acted  upon. 

167.  Pedigree. 

168.  Custom   and  boundaries. 

169.  Statements   against  pecuniary  interest. 

170.  Dying   declarations. 

171.  Business  entries. 

172.  Mathematical    and    statistical    tables. 

173.  Commercial  publications. 

174.  Former  testimony — Bill    of    exceptions. 

175.  Former  testimony — Notes  of  stenographer. 
170.  Former  testimony — Witnesses. 

162.  GENERAL  RULE— ILLUSTRATIONS. 

(a)  Hearsay  is  the  evidence  of  those  who  relate,  not  what 
they  know  themselves,  but  what  they  have  heard  from  others. 
Such  mere  recitals  or  assertions,  whether  oral  or  written,  can 
not  he  received  in  evidence  for  the  reason  that  the  party  mak- 
ing them  is  not  on  oath,  and  because  the  party  against  whom 
they  operate  has  no  opportunity  of  cross-examination. 

Walter  v.  Bowling  Green,  16  C.  D.  756,  5  C.  C.    (N.S.)    516,  526. 

(b)  Information  acquired  by  a  police  offtcer  from  a  third 
person  as  to  the  amount  of  nitro-glycerine  transported  over  a 
certain  street  by  the  defendant,  in  violation  of  a  municipal  ordi- 
nance, is  hearsay  evidence  and  inadmissible,  and  statements  of 
a  driver  of  a  milk-wagon  to  the  arresting  officers  as  to  who 
OAvned  the  wagon,  when  repeated  in  court  by  the  officers,  was 
held  to  be  hearsay. 

Walter  v.  Bo^v^iT^^  Green.  5   C.  C.    (N.S.)    516,  16   C.  D.  756. 
(  -rdes  V.  State,  4  N.  P.  14,  6  O.  D.  5. 

214 


215  HEARSAY  §162 

(c)  A  doctor  can  not  testify  that  a  hypodermic  injection 
■was  given  because  he  directed  a  nurse  to  frive  it  and  was  told 
that  it  had  been  given.  And  a  witness  will  not  be  allowed  to 
state  what  a  doctor  told  him  about  medicines  he  had  admin- 
istered, because  it  is  hearsay. 

Ward  V.  Railway.  16  C.  C.    (X.S.)   504.  27  C.  D.  627. 
Insurance  Co.  v.  LeBoiteaux,  5  0.  D.  R.  242,   4  A.  L.  Rec.   1. 
Cf.   Dawson    v.   State,  5  O.   App.    130. 

(d)  On  the  trial  of  one  charged  with  murder,  an  exculpa- 
tory declaration  of  the  deceased,  which  is  neither  a  dying 
declaration  nor  part  of  the  res  gestae,  is  not  competent  evi- 
dence for  the  accused. 

State  V.  Grayson,  18  Bull.  221,  10  0.  D.  R.  55. 

(e)  In  a  proceeding  to  set  off  the  yearly  allowance  to  a 
widow,  a  statement  of  the  deceased  as  to  the  amount  of  his 
income  can  not  be  admitted,  because  it  is  not  a  statement  in 
the  ordinary  course  of  business,  nor  is  it  a  statement  against 
his  pecuniary  interest. 

In  re  Ralic,  12  0.  D.  590. 

(f )  In  an  action  for  enticing  away  a  wife,  it  is  error  to  allow 
the  husband  to  testify  to  statements  of  the  wife  relating  to 
the  words  and  acts  of  the  defendant,  as  they  are  mere  hearsay. 
But  he  may  testify  to  her  declarations  shortly  before  the  entic- 
ing, whether  before  or  after  the  marriage,  to  show  the  state  of 
her  affection  tOAvard  him. 

Preston   v.   Bowers,   13   0.   S.   1. 

Cf.  Wilson  V.  Barkalow,  11   0.   S.  470,  473. 

(g")  Evidence  of  a  witness  that  he  had  heard  or  understood 
that  a  statement  was  a  fact  is  hearsay.  But  it  is  not  hearsay 
for  a  witness  to  state  that  he  had  heard  of  a  certain  transaction, 
Avhen  the  object  of  the  question  is  to  assist  him  in  fixing  a  date. 

Adams  v.  Brown,  16  0.  S.  75. 

Thompson  v.  Ackerman,  21   C.  C.   740,   12   C.  D.   456. 

Telephone  Co.  v.  Jackson,  4  C.  C.    (N.S.)    386,  16  C.  D.   89. 

(h)  It  is  not  error  to  admit  the  statement  of  a  witness  that, 
"a  police  officer  told  him  where  he  obtained  licpior  in  dry  terri- 
tory," if  no  disclosure  is  made  as  to  the  j)erson  who  sold  it. 

Lynch  v.  State,  12  C  C.    (N.S.)    330,  21    C.  D.  352. 


§163  METZLER'S   OHIO    TRIAL    EVIDENCE  216 

(i)  Where  a  witness  states  that  at  the  time  he  saw  a  cer- 
tain device  he  did  not  know  what  it  was,  but  irnv  knows  that 
it  was  a  signal  torpedo,  such  statement  will  not  be  taken  from 
the  jury  as  hearsay;  because  such  after-acquired  knowledge 
is  not  necessarily  hearsay.  A  witness  should  testify  accord- 
ing to  his  present  knowledge  and  not  according  to  that  of  a 
previous  time. 

Railroad  v.  Marsh,   63   0.   S.  236,  40. 

(j)  Where  a  witness  is  asked  a  question  in  the  ordinary 
form,  it  calls  for  the  personal  knowledge  of  such  wntness;  and 
if  the  adverse  party  does  not  ask  any  preliminary  questions  to 
ascertain  whether  the  answer  would  be  hearsay,  the  court  can 
not  assume  that  the  witness  could  not  answer  from  knowledge. 

Turnpike  Co.  v.  Hester.  5   C.  D.  600,  12  C.  C.  350. 

(k)  A  question  asked  on  cross-examination  of  the  witness, 
by  the  defendant,  as  to  Avhat  a  third  person  told  him.  wnll 
not  authorize  the  other  party,  on  a  re-examination,  to  inquire 
■what  the  third  person  in  the  same  conversation  said  the  de- 
fendant himself  had  told  him ;  such  evidence  is  hearsay. 

McCraeken  v.  West,   17   Oh.   16. 

163.  WRITTEN  HEARSAY. 

(a)  A  report  of  an  accident  made  up  by  agents  of  a  rail- 
way company  from  statements  of  persons  who  witnessed  it, 
is  incompetent  against  the  company,  as  it  is  not  a  part 
of  the  res  gestae  but  mere  hearsay.  And  the  fact  that  the 
statute  requires  such  reports  to  be  made  to  the  commissioner 
of  railways,  does  not  render  them  competent  against  the 
company. 

Pxaihvay  v.  Ullom.  20  C.  C.  ."12.  11   CD.  321. 
Cf.  E.K  parte  Schoepf,  74  O.  S.  1. 

(b)  In  a  case  to  appropriate  land  Avhere  there  w^as  a  coal 
mine  and  also  a  private  railway,  the  account-books  of  the 
company  operating  the  mine  and  raihvay  were  held  not  ad- 
missible to  show  the  value  of  the  land  where  the  coal  company 
was  not  a  party  to  the  case,  and  no  special  ground  is  laid  for 
the  evidence. 

Powers  V.  Railway,  33  0.  S.  429. 


217  HEARSAY  §  165 

(c)  In  order  to  prove  that  the  makers  of  forged  notes 
were  fietitions  persons,  a  letter  of  the  cashier  to  whom  they 
were  sent  for  collection,  stating  that  the  makers'  residence 
should  have  been  furnished,  and  the  notarial  protest  certify- 
ing that  the  parties  could  not  he  found  were  admitted  in  evi- 
dence. It  was  held  tliat  these  were  mere  declarations  of  third 
persons,  which  it  was  error  to  admit. 

Farrington  v.   State,   10  Oli.   354. 

(d)  Tn  an  action  for  loss  of  grain  in  transit,  the  testimony 
of  a  witness  who  has  no  knowledge  of  the  weight  of  the  grain 
except  Avhat  was  contained  in  the  certificates  of  weight,  is 
inadmissible  to  prove  the  quantity  of  grain  shipped.  And 
newspaper  statements  and  the  understanding  of  a  witness 
from  such  sources  are  not  evidence  as  to  who  are  directors  of 
a  bank. 

Emison  v.  Railroad.   12   C.  D.  727. 
State,   ex    rel.,   v.    Bucliaiian,    Wiiglit   233. 

164.  EXCEPTION'S  TO  THE  RULE. 

(a)  The  hearsay  rule  is  simple;  but  the  exceptions  to  the 
rule,  which  are  many,  are  not  so  simple.  They  include  such 
subjects  as  dying  declarations,  business  entries,  and  proof  of 
former  testimony,  any  one  of  which  is  much  more  complicated 
than  the  principal  rule  it.self.  The  remainder  of  the  chapter 
will  treat  of  tliese  exceptions. 

165.  WORDS  IN  ISSUE. 

(a)  "When  it  is  material  to  know  whether  a  person  made  a 
certain  remark  or  statement  at  a  particular  time,  such  as  the 
slanderous  words  in  libel  and  slander,  evidence  is  admissible 
to  show  that  it  was  made;  and  it  is  not  regarded  as  hearsay. 
Therefore,  the  contradictory  statements  of  witnesses  and  the 
admissions  and  confessions  of  parties  are  not  hearsay.  Ad- 
missions and  confessions  may  be  regarded  as  exceptions  to 
the  hearsay  rule,  as  they  are  evidence  of  the  facts  stated  in 
them  ;  contradictory  statements  are  not  ordinarily  regarded  as 
exceptions,  as  they  are  not  admitted  to  prove  the  issue,  but 
merely  to  discredit  the  witness. 


§  166  METZLER'S    OHIO    TRIAL    EVIDENCE  218 

(b)  A  bystander  may  testify  to  the  part  of  a  telephone 
conversation  heard  by  him,  where  such  conversation  is  in 
other  respects  competent  evidence  in  the  case,  such  as  one  of 
the  terms  of  an  oral  contract. 

Dannemiller  v.   Leonard,   15   C.   C.   686,   8   C.  D.   735. 

(c)  Where  a  witness,  in  testifying  as  to  a  conversation 
had  by  telephone,  makes  a  positive  statement  as  to  who  it 
was  with  whom  he  conversed,  and  he  is  not  cross-examined 
as  to  the  identity  of  the  person  at  the  other  end  of  the  Avire, 
the  conversation  is  admissible,  notwithstanding  the  uncer- 
tainty which  may  exist  as  to  the  identity  of  tlie  other  party 
speaking. 

Pullman  Co.  v.  Willett,  7  C.  C.   (X.S.I    173,  17  C    D.  649 

166.  INFORMATION  ACTED  UPON. 

(a)  When  the  question  is  whether  a  person  acted  pru- 
dently, wisely  or  in  good  faith,  the  information  on  which  he 
acted,  whether  true  or  false,  is  original  and  not  hearsay  evi- 
dence. 

Upthegrove  v.  State,  .37  0.  S.  662,  663. 

(b)  If  a  person  is  run  down  while  on  the  track  waiting 
for  a  train  that  is  on  time,  a  statement  to  him  when  starting 
from  home  that  the  train  was  fifteen  minutes  late  is  compe- 
tent, not  as  shoAving  that  it  was  late,  but  to  rebut  an  inference 
of  negligence  by  showing  that  he  acted  on  such  information 
and  was  misled. 

Railway  v.  Herrick,  4n  0.  S.  25. 

(c)  Where  a  cross-examination  is  directed  to  showing  that 
the  witness  arrested  the  prisoner  recklessly  and  without  reli- 
able information,  it  is  competent  on  re-examination  to  ask  for 
the  description  he  had  received  of  the  criminal  from  a  witness 
of  the  crime  in  order  to  explain  the  cross-examination. 

Moran  v.  State,  11  C.  C.  464,  5  C.  D.  234. 

(d)  Upon  the  same  principle  it  is  considered  that  evidence 
of  general  reputation,  reputed  ownership,  public  rumor,  gen- 
eral notoriety,  and  the  like,  though  composed  of  the  speech  of 
third   persons   not  under   oath,   is   original   evidence   and   not 


219  HEARSAY  §167 

hearsay.    (See  Index  under  Malice,  Probable  Cause,  Character, 

etc.) 

UpthegrovL-  v.  State,  37  0.  S.  662,  663. 

167.  PEDIGREE. 

(a)  The  law  resorts  to  hearsay  evidence  in  cases  of  pedi- 
gree upon  the  ground  of  the  interest  in  the  declarations  of 
the  person  from  whom  the  descent  is  made  out,  and  their  con- 
sequent interest  in  knowing  the  connections  of  the  family. 
The  rule  of  admission  is,  therefore,  restricted  to  the  declara- 
tions of  deceased  persons  who  were  related  by  blood  or  mar- 
riage to  the  person,  and  therefore  interested  in  the  succession 
in  question. 

:McCiino   V.   Larkin.   25   C.   C.    (X.S.)    118,  26   C.  T>.   357. 
See   Sperry   v.  Tebbs,  20   Bull.    181,   10  0.  D.   R.   318. 

(b)  The  law  of  evidence  necessarily  permits  hearsay  as  to 
pedigree;  and  general  reputation  that  a  man  and  woman  had 
lived  and  cohabited  in  a  community  as  man  and  Avife  has  been 
held  sufficient  to  establish  the  fact  of  marriage,  but  the 
weight  to  be  given  to  such  evidence  varies  with  the  circum- 
stances of  each  case. 

Stewart   v.   Welch,   41    0.   S.   483,   497. 

(c)  In  all  civil  actions,  when  the  rights  to  succession  of 
an  estate  depends  on  the  existence,  of  a  marriage,  it  may  be 
proved  by  reputation,  and  also  by  the  declarations  and  con- 
duct of  the  parties. 

Brnner   v.  Bripfrs.  30   O.   S.  478.   480. 
Cf.   Railway   v.   Cobb,   35   O.   S.   94. 

(d)  Tn  an  action  to  recover  an  estate  of  dower  or  of  cur- 
tesy, the  marriage  may  be  shown  by  proof  of  living  together 
as  husband  and  wife  for  a  series  of  years,  always  recognizing 
each  other  as  such,  and  being  so  treated  and  reputed  in  the 
community. 

Bniner  v.  Brijips,  30  O.  S.  478. 

Roberts   v.   Roberts,  8   W.  L.  J.  372,    1    O.   I).    It.   368. 

(e)  In  divorce  and  alimony,  proof  of  cohaliitation  and 
reputation    oi"   I  he   iiiari-iag(!   of  the   ])aiiii'.s    is   coiiipctciit    cvi- 


§168  METZLER'S   OHIO   TRIAL    EVIDENCE  220 

dence  to  prove  such  marriage,  and.  within  the  discretion  of 
the  court,  may  be  sufficient  therefor. 
Section  11989,  General  Code. 

(f)  But  the  rule  admitting  reputation  as  to  family  his- 
tory, does  not  extend  to  allow  hearsay  as  to  specific  facts  of 
sickness  or  peculiarities  of  individuals  of  the  family. 

State   V.   Lentil,   5    C.    C.   94,   3    C.    D.   48. 


168.  CUSTOM  AND  BOUNDARIES. 

(a)  Declarations  of  deceased  persons  in  regard  to  reputa- 
tion on  matters  of  public  or  general  interest  are  admitted, 
notwithstanding  the  hearsay  rule.  Declarations  in  regard  to 
an  ancient  custom  is  an  example  of  this  exception  to  the  hear- 
say rule.  The  rule  is  often  applied  to  private  boundary 
disputes. 

(b)  Custom  is  a  species  of  hearsay  testimony,  and  in  its 
most  extended  sense  means  a  rule  of  action  which  extends 
back  beyond  the  recollection  of  living  witnesses;  and  is  in  this 
sense  put  upon  the  same  basis  as  hearsay  testimony  in  regard 
to  other  ancient  matters  that  have  their  beginning  beyond  the 
recollection  of  living  witnesses;  but  custom,  as  applied  to  con- 
tracts, is  not  of  this  extended  and  ancient  character. 

Tillyer  v.  Glass  Co.,  7  C.  D.  209.  13  C.  C.  99. 

(c)  AYhen  corners  are  lost  they  may  be  proved  by  reputa- 
tion. Witnesses  may  be  examined  to  show  that  a  corner  once 
existed ;  that  it  has  been  destroyed,  and  that  it  corresponded 
with  the  call  of  the  entry  or  survey.  But  they  can  not  be 
allowed  to  substitute  one  corner  for  another,  or  to  contradict 
the  evidence  w-hich  is  of  record. 

McCoy  V.  Galloway,  3  Oh.  282. 

(d)  But  where  a  testator  devised  all  of  his  "home  farm" 
to  his  widow,  it  was  held,  in  an  action  by  the  residuary  de- 
visees to  recover  land  M'hich  the  defendants  claimed  under  the 
devise  as  part  of  the  home  farm,  that  hearsay  or  neighbor- 
hood reputation  can  not  be  resorted  to  in  determining  the  ex- 
tent or  boundaries  of  the  home  farm. 

Tavlor  v.  Bojjgs,  20  O.  S.  516. 


221  HEARSAY  §170 

169.  STATEMENTS  AGAINST  PECUNIARY  INTEREST. 

(a)  To  authorize  the  admission  of  the  declarations  of  a 
deceased  person  aofainst  third  persons  not  claiming  under  him, 
on  the  ground  that  they  Avere  made  against  his  pecuniary  in- 
terest, it  should  appear  that  he  has  i)eculiar  means  of  knowl- 
edge of  the  subject-matter  of  the  declarations.  There  should 
be  a  presumption  of  actual  knowledge  arising  from  his  imme- 
diate connection  with  the  transaction  or  from  a  duty  to  know 
the  fact.  A  mere  inference  from  evidence  that  he  might  have 
known  or  very  probably  would  have  known,  will  not  suffice. 

Bird  V.  Hueston.   10  0.  S.  418. 

Cf.  State  V.  Campbell.   11   X.  P.    (N.S.)    673,  21   0.  D.  853. 

See  also   State   v.   Campbell,   86   O.   S.   33:). 

(b)  Plaintiff  sued  the  defendant  as  administrator  for  work 
and  labor  and  offered  the  declarations  of  a  former  adminis- 
trator who  had  died  before  the  trial,  by  which  declarations 
the  indebtedness  of  the  estate  to  plaintiff  was  admitted.  It 
was  held  that  the  declarations  were  not  admissible,  although 
the  declarant  was  the  son  of  the  decedent  and  managed  the 
estate  of  deceased  until  his  own  death. 

Bird  V.  Hueston,  10  0.  S.  418. 

(c)  Where  plaintiff  sued  defendant  on  his  indorsement  for 
the  amount  of  a  forged  draft,  and  it  is  shown  that  the  forger 
held  an  official  position  which  gave  him  an  opportunity  to 
commit  the  forgery  as  it  was  carried  out,  and  that  the  forger 
Avas  arrested  and  soon  thereafter  died,  a  witness  was  per- 
mitted to  relate  a  statement  made  by  the  forger  after  his  ar- 
rest, in  which  he  stated  the  details  of  the  forgery.  It  was 
held  that  the  evidence  was  properly  admitted  under  this  rule. 

Ban!:  v.  Bank.  7  0.  App.  68,  28  C.  D.  106,  27  0.  C.  A.  56. 

170.  DYING  DECLARATIONS. 

(a)  Evidence  of  dying  declarations  are  not  excluded  by 
the  constitutional  provision  that  the  accused  shall  he  allowed 
to  meet  the  witnesses  face  to  face.  It  is  well  settled  that 
dying  doflarations  fall  within  the  exceptions  to  the  hearsay 
rule. 

Robbins  V.  State,  8  O.  S.  131. 

Sta^  V.   Kindle,  47   0.   S.   358,   361. 


§170  METZLER'S   OHIO   TRIAL    EVIDENCE  222 

("b)  It  is  essential  to  the  admissibility  of  dying  declara- 
tions as  evidence  that  it  should  be  made  to  appear  to  the 
court  by  preliminary  evidence  not  only  that  they  were  made 
in  articulo  mortis,  but  also  made  under  a  sense  of  impending 
death,  which  excluded  from  the  mind  of  the  dying  person  all 
hope  or  expectation  of  recovery. 

Eobbins  v.  State,  8  0.  S.  131. 
State  V.  Kindle,  47  0.  S.  358,  365. 
Martin  v.  State,  9  C.  D.  621,  17  C.  C.  406. 

(c)  Declarations  made  by  a  person  shortly  after  an  as- 
sault which  caused  his  death,  are  not  competent  where  it  does 
not  appear  that  at  the  time  of  making  the  declarations  he 
knew  or  believed  that  he  was  about  to  die. 

Wade  V.  State,  2  C.  C.   (X.S.)    189,  15  C.  D.  279. 
State  V.  Moore,  8  O.  D.  674,  34  Bull.  276. 

(d)  It  must  be  determined  by  the  court  by  preliminary 
evidence  that  the  statement  is  a  competent  dying  declaration. 
And  it  is  the  right  of  the  judge  to  hear  this  evidence  in  the 
absence  of  the  jury ;  and  it  is  his  duty  to  do  so  on  the  appli- 
cation of  the  defendant.  Where  the  court  upon  such  hearing 
in  the  absence  of  the  jury  holds  that  the  declarations  are  ad- 
missible, the  same  or  similar  evidence  must  be  submitted  to 
the  jury. 

Montgomery  v.  State,   11   Oh.  424. 

Martin  v.  State,  9  C.  D.  621,   17   C.  C.  406. 

(te)  Upon  the  submission  to  the  jury  of  alleged  dying 
declarations,  it  is  the  right  of  the  defendant  to  cross-examine 
the  witnesses,  to  show  if  he  can  that  there  were  no  such  dying 
declarations  made,  or  for  any  reason  they  are  not  credible ; 
and  the  defendant  may  offer  evidence  upon  these  points  in  his 
defense. 

Martin  v.  State,  9  C.  D.  621,   17   C.  C.  406. 

State  V.  Kindle,  47  0.  S.  358,  361. 

(f)  Upon  a  trial  for  murder,  it  is  not  error  to  admit  in 
evidence  a  competent  dying  declaration  in  a  written  statement 
by  the  injured  person,  where  such  declaration  was  at  the  time 
reduced  to  writing  at  the  instance  of  the  declarant,  or  with 
his  consent,  and  was  approved  and  signed  by  him,  and  con- 


223 


HEARSAY  ^ 170 


tained   statements   of  the   circumstances   of   tlie   unlawful   act 
wliieli  is  the  subject  of  the  cliarge. 

State  V.  Kindle,  47  0.  S.  35S. 

Cf.  Martin  v.  State,  9  C.  D.  621,  17  C.  C.  406. 

(g)  If  a  former  declaration  is  referred  to  as  true  in  a 
dying  declaration,  it  becomes  a  part  thereof  as  if  repeated  at 
length.  And  a  witness  may  state  their  substance,  although  he 
may  not  be  able  to  give  the  precise  words. 

Montgomery  v.  State,   11   Oh.  424.  425. 

(h)  The  general  rule  of  evidence  is  that  dying  declara- 
tions are  admissible  only  when  the  death  of  the  declarant  is 
the  subject  of  the  charge,  and  the  circumstances  of  the  death 
are  the  subject  of  the  dying  declarations. 

State  V.  Harper,  35   0.  S.  78. 

(i)  Under  the  general  rule,,  it  was  formerly  held  that 
dying  declarations  were  not  admissible  in  a  trial  for  abortion ; 
but  now^,  by  statute,  the  dying  declaration  of  the  woman  who 
dies  in  consequence  of  the  miscarriage  or  attempted  miscar- 
riage, is  admissible  against  the  accused. 

State  V.  Harper,  35  0.  S.  78, 

Section   12412-1,  General   Code. 

(j)  In  a  civil  action  under  the  statute  for  wrongfully 
causing  death,  dying  declarations  of  the  deceased  are  not  ad- 
missible, although  defendant  admits  killing  the  deceased,  and 
the  evidence  tends  to  show  facts  sufficient  to  justify  a  charge 
of  homicide. 

Cosgrove  v.   Schaefer,   15   Bull.   8,  0   0.   D.  R.  550. 

(k)     In    making    a    dying    declaration,  the    declarant,    in 

speaking  of  the  fatal  wound,  said   it  was  done  Avithout   any 

provocation  on  his  part.     This  declaration  was  not  incompe- 
tent as  being  mere  matter  of  opinion. 

Wroe  V.   state,  20  O.   S.  460. 
Cf.  Runyon    v.   Price,    15   O.  S.   1. 

(1)  Where  dying  declarations  are  })r()V('<l  in  a  case,  a 
statement   of   the   deceased   made    at   another   time,    which    is 


§171  METZLER'S    OHIO    TRIAL    EVIDENCE  224 

neitlier  a   dying  declaration  nor  a   part   of  the  res  gestae,  is 
not  admissible  to  impeach  such  declarations. 

Wroe  V.  State,  20  0.  S.  460. 

Cf.  Runyon   v.   Trice,   15   O.   S.  1. 

171.  BUSINESS  ENTRIES. 

(a)  An  entry  in  a  book,  or  in  any  other  form,  made  in  the 
usnal  course  of  business  at  the  time  of  the  transaction  by  a 
person  legitimately  connected  therewith  and  not  a  party  to 
the  suit,  but  who  is  shown  to  have  had  means  of  knowledge 
and  no  interest  in  misstating  the  facts,  is  admissible  in  evi- 
dence. 

Dispatch  Co.  V.  Sturges,  7  C.  C.    (X.S.)    445,  18  C.  D.  65. 

(b)  This  rule  relates  rather  to  entries  by  agents  than  by 
principals.  It  must  appear  not  only  that  the  entry  was  made 
in  the  discharge  of  business,  but  that  it  was  the  duty  of  the 
person  to  do  the  very  thing  to  which  the  entry  relates,  and 
then  make  a  report  or  record  of  it. 

Watts  V.  Shewell,  31   0.  S.  331,  335. 

(c)  Book  accounts,  even  though  hearsay,  are  admitted 
under  this  rule  and  the  statute,  which  provides  that  entries 
made  by  a  person  since  deceased  or  bj^  a  disinterested  person, 
who  is  not  a  resident  of  the  county,  are  competent  when  the 
party  testifies  that  the  book  is  his  account-book,  and  that  it  is 
a  book  of  original  eutries.  And  a  person  other  than  the  party 
may  make  such  proof;  for  the  statute  also  provides  that 
such  book  "may  be  admitted  in  evidence  in  any  case  *  *  * 
upon  like  proof  by  any  competent  witness." 

See  Section  11495,  General  Code. 

(d)  In  order  to  prove  the  delivery  of  grain  by  such  an 
entry,  it  must  be  shown  that  it  was  given  in  the  regular  course 
of  business  by  one  authorized  to  do  so. 

Emison  v.   Railroad,   12   C.  D.   727. 

(e)  The  daily  reports  of  gaugers  in  the  internal  revenue 
service  regularly  prepared  as  part  of  their  official  duty  and 
concerning  the  existence  of  facts  upon  which  it  is  their  duty 
to  be  informed  and  make  reports,  are  competent  to  show  the 


225  HEARSAY  §  171 

quantity  of  whiskey  measured  by  them  at  the  time  packages 
went  into,  as  Avell  as  when  they  were  released  from,  bond. 

Wymond  Co.  v.  Thompson.  S  N.  P.  347.  11  0.  D.  4^7. 

(f)  In  an  action  to  recover  land  where  the  boundary  line 
has  been  established  by  mistake,  the  field-notes  of  the  sur- 
veyor, who  died  prior  to  the  trial,  are  competent  evidence  to 
go  to  the  jury,  provided  they  contain  anything  relating  to  the 
controversy. 

Detwilor  v.  Toledo,  6  C.  D.  297.   13  C.  C.  572. 

(g)  And  Avhere  doubts  exist  as  to  the  boundaries  of  land 
aparted  by  landowners,  surveys  and  field-notes  referred  to  in 
the  records  may  be  used  as  evidence  for  the  purpose  of  ascer- 
taining the  boundaries. 

Lockwood  V.   Wildman.   13  Oh.   430. 

Hams  V.  Coppock.  5  0.  L.  R.  207,   IS  0.  D.  266. 

(h)     "Where  a  record  of  a  Hospital   is  not  a  public   docu- 

mem  m  tne  usual  meaning  or  tnat  term,  it  would  still  be  a 

'  record  made  by  the  receiving  *)hysician  in  the  usual  course 

of  his  business  and  as  a  part  of  his  duties:  and  in  the  absence 

of  such  a  physician  from  the  state,  proof  that  the  record  is 

in  his  handwriting  would  make  its  admission  competent  under 

the  exceptions  to  the  hearsay  rule. 
Cassidy   v.   Traction   Co.,  29  O.  D.   6. 

(1)  Reports  competent  because  of  the  official  character 
and  duty  of  the  person  preparing  them,  are  not  rendered  in- 
competent by  reason  of  the  fact  that  he  carried  his  figures  to 
his  desk  in  a  memorandum  book,  instead  of  depending  on  his 
memory. 

Wymond   Co.  v.  Thompson,  8  N.  P.  347,   11    0.  D.  4S7. 

(j)  Memoranda  on  the  stub  of  a  check-book  made  by  the 
debtor's  agent  who  had  died  before  the  trial,  are  not  com- 
petent again.st  the  creditor  to  prove  payment.  The  declara- 
tions of  such  agent  are  likewise  incompetent,  such  evidence  is 
mere  hearsay. 

Watts   V.  Slicwtdl,   31    f).   S.   331. 

Cf.  Matluas  v.   Ila/.i-n.   11   C  D.  54,  20  C.  C.  287. 

ME'IZLEK'.S    'llllAL    tv. — 8 


§173  METZLER'S   OHIO   TRIAL    EVIDENCE  226 

(k)  Port-Avardens  are  not  such  officers  that  entries  in  their 
books  are  evidence  in  an  action  on  a  bill  of  lading  to  show  the 
condition  of  goods  on  arrival. 

Haughton  v.  The  Memphis,  8  W.  L.  J.  562,   1  0.  D.  R.  403. 

(1)  The  recorder's  entry  on  the  margin  of  the  record  of 
a  deed  after  it  is  recorded,  stating  that  it  had  not  been  de- 
livered, is  not  admissible. 

Foster  v.  Dugan,  8  Oh.  87. 

172.  MATHEMATICAL  AND  STATISTICAL  TABLES. 

(a)  Almanacs  are  admitted  in  evidence  to  prove  at  what 
honr  the  sun  or  moon  rose  at  a  given  time,  although  the 
court  may  take  judicial  notice  of  such  fact. 

Railway   v.   Willing.   5   C.   C.    (N.S.)    137.   14   C.   D    474,   477. 

(b)  Evidence  in  the  nature  of  tables  of  a  life  insurance 
company  .showing  probable  duration  ot  life  is  not  restricted  to 
use  in  actions  involving  death  ;  such  evidence  is  competent  in 
an  action  for  personal  injuries,  as  bearing  upon  plaintiff's 
financial  loss  and  pecuniary  damages  by  diminution  of  earning 
capacity. 

ronn.  Co.  V.  Ilickley.   11   C.  D.  370.  20  C.   C.  668. 
Wasnier   v.   Rawlins,   46   Bull.    147. 

(c)  The  record  of  a  horse  for  speed  as  affecting  value  is 
provable  bj^  the  publication  of  a  recognized  trotting  associa- 
tion. But  the  testimony  of  a  witness  to  information  obtained 
by  reading  such  record  is  not  competent. 

Railway   v.  Sheppard,  56  0.  S.  68. 

173.  COMMERCIAL  PUBLICATIONS. 

(a)  A  mercantile  agency  book  of  general  use  among  com- 
mercial men  which  notes  the  dissolution  of  a  firm,  and  to 
which  book  the  plaintiff  has  had  access,  is  competent  evidence 
as  tending  to  show  notice  to  plaintiff  of  that  fact. 

Crosier  v.  McXeal,  17  C.  C.  644.  6  C.  D.  748. 

(b)  But  in  an  action  by  a  creditor  of  a  firm  to  charge  the 
defendant  as  a  member  of  such  firm,  it  was  held  that  neither 


227  HEARSAY  §175 

the  reports  from  a  mercantile  agency  nor  the  declarations  of 
third  parties  are  competent  evidence  to  establish  such  liability. 
Cook  V.  Slate  Co.,  36  O.  S.  135. 

(c)  A  record  kept  by  a  newspaper  of  the  time  and  length 
of  a  baseball  game  is  not  competent  as  evidence  under  the  rule 
which  permits  to  be  received  in  evidence  such  records  as  mar- 
ket and  weather  reports. 

Andrews  v.  Stato.   IT,  C.  C.    (^.S.)    241,  23  C.  D.  564. 

174.  FORMER  TESTIMONY— BILL  OF  EXCEPTIONS. 

(a)  When  a  party  or  witness,  after  testifying  orally,  dies, 
is  beyond  the  jurisdiction  of  the  court,  can  not  be  found  after 
diligent  search,  or  is  insane,  or  through  any  physical  or 
mental  infirmity,  is  unable  to  testify,  or  has  been  summoned, 
but  appears  to  have  been  kept  away  by  the  adverse  party,  if 
the  evidence  given  by  such  party  or  witness  is  incorporated 
into  a  bill  of  exceptions,  in  the  case  wherein  such  evidence 
was  given,  as  being  all  the  evidence  given  by  such  party  or 
witness  and  such  bill  has  been  duly  signed  by  the  judge  or 
court,  before  whom  such  evidence  was  given,  the  evidence  so 
incorporated  into  such  bill  of  exceptions  may  be  read  in  evi- 
dence by  either  party  on  a  further  trial  of  the  case.  (This 
section  does  not  apply  to  criminal  cases.  State  v.  Wing,  66 
O.  S.  407,  419.     The  case  cited  below  states  the  old  law.) 

Pection  11406.  C.enoral  Code. 
Kirk  V.  Mowry.  24  O.  S.  .5S1. 
See  also  Index  under  Affidavits  and  Depositions. 

175.  FORMER     TESTIMONY  —  NOTES     OF     STENOG- 
RAPHER. 

(a)  If  no  bill  of  exceptions  has  been  taken  or  signed  as 
aforesaid,  but  the  evidence  of  such  party  or  witness  has  been 
taken  down  by  an  official  stenographer,  the  evidence  so  taken 
may  be  read  in  evidence  by  either  party  on  the  further  trial 
of  the  case,  and  shall  be  prima  f;icic  evidence  of  what  such 
deceased  party  or  witness  testified  to  orally  on  the  former 
trial.     (See  preceding  part  of  this  statute.) 

Section    11406,   Ocncral   Code. 


§176  r^-.ETZLER'S   OHIO    TRIAL    EVIDENCE  228 

(b)  In  an  action  to  recover  a  statutory  penalty,  the  rule 
that  the  defendant  is  entitled  to  meet  the  witnesses  face  to 
face  does  not  prevent  the  use  of  a  stenographer's  notes  of  the 
testimony  of  a  witness  given  at  a  former  trial  and  who  is  now 
beyond  the  jurisdiction  of  the  court. 

DeVeaux  v.  Clemens,   17   C.  C.   33.  9   C.   D.  647. 

(c)  Contradictory  declarations  of  witnesses  made  at  a 
former  trial  or  before  the  grand  jury,  may  be  proved  by  the 
stenographer  who  took  the  testimony  by  producing  his  notes 
and  reading  them  to  the  jury,  or  by  testifying  from  memory, 
though  refreshed  from  his  notes.  The  stenographer  must  state 
that  the  testimony  was  correctly  taken,  and  that  the  notes 
contain  all  the  testimony  of  the  witness. 

Penn.  Co.  v.  Trainer,   12   C.  C.  GO.  5   C.  D.  ."^lO. 
John  V.  State,  IG  C.  C.    (N.S.)    31G. 

(d)  If  the  court  permits  an  official  stenographic  report  of 
testimony  taken  in  a  previous  trial  to  be  read  in  evidence,  a 
transcript  thereof  should  be  deemed  to  be  in  evidence,  with 
the  privilege  to  the  opposite  party  of  examining  it  and  cross- 
examining  upon  it.  And  in  the  absence  of  evidence  to  the  con- 
trary, the  presumption  is  that  the  trial  judge  determined  that 
the  notes  were  used  for  a  purpose  legally  competent;  and  it  is 
probable  that  a  similar  presumption  arises  that  the  notes  were 
accurate. 

Hutchinson   v.  State.   8   C.   C.    (N.S.)    313,   18   C.   D.   595. 

176.  FORMER  TESTIMONY— WITNESSES. 

(a)  If  such  evidence  hns  not  been  taken  by  such  a  sten- 
ographer it  may  be  proved  by  witnesses  who  were  present  at 
the  former  trial,  having  knowledge  of  such  testimony.  All 
testimony  so  offered  shall  be  open  to  all  objections  which 
might  be  taken,  if  the  witness  was  personally  present.  (See 
preceding  parts  of  this  statute.) 

Section    11496.   General   Code. 

(b)  A  witness  can  read  his  notes  of  the  former  testimony 
of  an  insane  witness,  if  from  such  notes  he  can  swear  to  the 
substance  of  all  that  the  witness  said,  and  Avill  swear  that  he 


229  HEARSAY  §  176 

took  full  and  accurate  notes.     But  if  part   of  the  testimony 
was  not  taken  in  notes,  it  can  not  be  read. 

Sherlock   v.  Insurance  Co.,  7  0.  D.  R.   17,   1    Bull.  26. 

(c)  In  an  action  for  malicious  prosecution,  neither  the 
matristrate  who  bound  over  the  plaintiff  nor  other  witnesses 
can  testify  to  what  the  Avitnesses  other  than  the  defendant 
swore  to  before  the  magistrate  or  before  the  grand  jury. 
This  is  pure  hearsay.  The  Avitnesses  themselves  should  be  ex- 
amined But  any  competent  witness  who  was  ])resent  and 
heard  the  testimony  can  testify  that  no  evidence  to  support 
the  charge  was  given. 

.John  V.  "Bridgman.  27  0.   S.  22. 
Richards  v.   Foulke.  3  Oh.  52. 
Richards  v.  Foulks,  3  Oh.  66. 

(d)  Where  a  witness  who  has  testified  in  a  cause  is  dead, 
on  another  trial  of  the  same  cause  between  the  same  parties, 
a  witness  may  testify  as  to  the  substance  of  what  the  de- 
ceased witness  testified  on  the  former  trial.  The  exact  words 
are  not  necessary,  but  the  witness  is  not  allowed  the  latitude 
of  giving  the  effect  of  the  words. 

Wapers  v.  Dickey,    17   Oh.   439. 
Summons  v.  State,  5  0.  S.  325. 

(e)  AYhere  only  a  part  of  the  testimony  of  a  deceased 
yierson  in  a  former  trial  is  sought  to  be  reproduced,  it  is  a 
sufficient  qualification  if  the  witness  can  recollect  and  state 
the  substance  of  the  part  offered.  And  this  applies  to  a  sten- 
ographer who  can  not  find  his  notes. 

Summons  v.  State,  5  0.  S.  325. 

Donald  v.  State,  21   C.  C.    124.    U    C.   D.   483. 

(f)  It  is  essential  to  the  competency  of  the  witness  called 
to  give  this  kind  of  evidence:  (1)  that  he  heard  the  deceased 
person  testify  on  the  former  trial,  and  (2)  that  lie  luis  such 
accurate  recollection  of  the  matter  stated,  that  he  will,  on  his 
oath,  assume  or  undertake  to  nai'i-ato  in  substance  the  iiiattcM- 
sworn  to  by  the  deceased  person  in  all  its  material  jiarts  or 
that  part  thereof  which  he  may  ]»<'  callctl  on  to  pi-ove. 

Summons  v.  State,  5  0.   S.  325 


§  176  METZLERS    OHIO    TRIAL    EVIDENCE  230 

(g")  It  is  essential  to  the  competency  of  the  evidence:  (1) 
tliat  the  matter  stated  at  the  former  trial  by  the  witness  since 
deceased,  should  have  been  given  on  oath;  (2)  between  the 
same  parties  and  touching  the  same  subject-matter,  where  op- 
portunity for  cross-examination  was  given  the  person  against 
whom  it  is  now  offered;  and  (3)  that  the  matter  sworn  to  by 
the  person  since  deceased  be  stated  in  all  its  material  parts, 
and  in  the  order  in  which  it  was  given,  so  far  as  necessary  to 
a  correct  understanding  of  it. 

Summons  v.  State,  5  0.  S.  325. 

(h)  The  requirement  that  all  the  matter  sworn  to  on  the 
former  trial  by  the  person  since  deceased  be  stated,  being  one 
of  the  tests  of  the  competency  of  the  evidence,  but  not  of  the 
competency  of  the  witness,  it  is  7iot  essential  that  it  be  all 
proven  by  a  single  witness.  Tf  the  prosecution  assumed  to 
give  the  substance  of  all  the  evidence  of  a  deceased  witness, 
and  the  defense  proves  matters  in  it  omitted  by  the  state,  the 
jury  are  not.  for  that  reason,  required  to  reject  the  evidence 
on  the  part  of  the  state,  if  the  jury  are  satisfied  that,  taking 
all  together,  they  have  the  substance  of  all  the  evidence  given 
by  the  deceased  witness. 

Summons  v.  State,  5  0.  S.  325. 

(i)  Testimony  proving  the  statements  made  by  a  deceased 
witness  on  oath  at  a  former  trial  between  the  same  parties, 
being  one  of  the  established  exceptions  to  the  rule  that  hear- 
say is  incompetent  as  evidence,  the  admission  of  a  witness  to 
give  evidence  of  this  kind  in  a  criminal  case  does  not  con- 
travene the  constitutional  right  to  meet  the  witnesses  face  to 
face,  as  this  refers  to  the  personal  presence  of  the  witnesses 
and  not  to  the  quality  of  their  testimony. 

Summons  v.  State,  5  0.  S.  325. 

DeVeaux  v.  Clemens,  n   C.  D.  647,   17   C.   C.   33. 

(j)  In  the  trial  of  a  criminal  ease,  evidence  of  the  testi- 
mony' delivered  in  a  previous  trial  of  the  same  case  by  a  wit- 
ness not  dead  but  beyond  the  jurisdiction  of  the  court  or 
limits  of  the  state,  is  not  admissible,  unless  it  appear  to  the 
satisfaction  of  the  trial-court  that  the  witness  is  absent 
through  the  connivance  or  by  the  procurement  of  the  accused. 

State  V.   Wintr,   66  0.   S.  407. 

See  also  State  v.  HufTuian,  86  0.  S.  229,  243. 


CHAPTER  XIII. 
ADMISSIONS. 


177.  General   principles. 

178.  Illustrations — Oral. 

179.  Illustrations — Written. 

ISO.  Whole  statement   admissible. 

181.  Acquiescence. 

182.  Failure  to  offer  evidence. 

183.  Offer  to  compromise. 

184.  Self-serving  statements — Oral. 

185.  Self-serving  statements — P'xceptions. 

186.  Self-serving  statements — Written. 


-■& 


177.  GENERAL  PRINCIPLES. 

(a)  The  admissions  of  a  party  against  his  interest  are  ad- 
mitted on  the  ground  that  the  matter  declared  is  probably 
true.  The  regard  which  men  usually  pay  to  their  own  inter- 
ests is  deemed  a  sufficient  security  that  a  party's  declarations 
were  not  made  under  any  mistake  of  fact  or  without  informa- 
tion, if  he  had  the  requisite  means  of  knowledge. 

Thompson  v.  Thompson,   1.3  0.   S.   3.56,   363.     . 
Dunn  v.   Cronise.   0   Oli.   82,   83. 

(b)  A  conversation  may  be  proved  by  any  one  who  heard 
it  without  calling  a  party  to  the  conversation.  And  a  state- 
ment or  expression  heard  by  only  one  witness  of  many  who 
were  present,  is,  nevertheless,  admissible. 

Mimms  V.  State,   16  0.  S.  221,  231. 
Moran   v.  State,  5   C.  D.  234.   11    C.  C.  464. 

(c)  A  party  is  not  estopped  from  denying  the  truth  of  his 
own  statements,  unless  it  appears  that  they  were  made  in  bad 
faith  or  to  the  prejudice  of  the  adversary  party.  Although 
admissions  are  made  in  good  faith,  they  may  be  made  under 
such  circumstances  as  to  operate  to  preclude  the  party  from 
afterward  gainsaying  them.  If  the  admi.ssion  was  calculated 
to  and  did  in  fact  mislead  tiie  other  party,  who  acted  in  good 

231 


§178  METZLER'S   OHIO    TRIAL    EVIDENCE  232 

faith  and  with  reasonable  diligence,  it  will  estop  the  party 

making  it. 

McKinzie  v.  Steele,  18  0.  S.  38. 
Beardsley  v.  Foot,  14  0.  S.  414. 
Rosenthal  v.  Mayhugh,  33  0.  S.  155. 


178.  ILLUSTRATIONS— ORAL. 

(a)  The  testimony  of  one  of  several  defendants  in  another 
case  that  they  were  partners  is  not  conclusive  against  him, 
neither  is  it  a  mere  legal  conclusion ;  and  it  may  go  to  the 
jury  with  other  facts  under  proper  instructions  on  the  ques- 
tion of  partnership. 

Baker  v.  Brennan,  22   C.  C.   241,   12   C.   D.   211. 

(b)  The  fact  that  an  agent  handed  to  an  officer  of  a  com- 
pany his  card  which  gave  Chicago  as  his  residence  and  stated 
that  he  resided  there,  is  an  admission  to  prove  non-residence. 

Insurance  Co.  v.  Packet  Co.,  7  0.  D.  571,  6  N.  P.  173. 

(c)  In  an  action  to  recover  for  services  as  housekeeper, 
declarations  made  by  the  employer  that  he  would  pay  plaintiff 
well,  and  would  give  her  a  farm  if  she  would  remain  with  him 
and  continue  her  services,  are  competent  to  show  the  amount 
and  rate  at  which  he  valued  her  services. 

Berry  v.  Collins,  9  C.  C.  656,  6  C.  D.  597. 

(d)  In  a  suit  for  breach  of  promise,  evidence  is  competent 
on  behalf  of  plaintiff  of  conversations  between  the  parties 
after  defendant's  marriage  to  another,  and  of  his  admissions 
to  a  third  person  of  the  mutual  affection  of  the  parties. 

Carr  v.  Dovlosky,   17  C.  C.    (X.S.)    300. 

(e)  Where  an  attorney  instituted  a  suit  for  compensation 
for  services  rendered  in  organizing  a  corporation,  it  was  held 
that  a  statement  made  by  him  after  the  organization  was 
effected  that  he  did  the  work  for  nothing,  was  relevant  as  an 
admission. 

Building  Assn.  v.  Lotze,  11  Bull.  285,  9  0.  D.  R.  248. 

(f)  The  amount  of  insurance  put  on  his  stock  by  a  party, 
and    his    conversations    prior    to    the    insurance    and    relating 


233  Aorv:issici\i3  §  178 

thereto,    are   competent   against   him  as   an   admission   of    its 
value. 

Dougherty  v.  Sclilotman,   1    C.   S.  C.  T^.  292,  20S. 

(g)  TVhere  the  plaintiff  is  unable  to  speak  the  English 
language,  and  the  defendant  is  unable  to  speak  the  German 
language,  and  the  wife  of  the  plaintiff  understands  both  lan- 
guages, and  acts  as  interpreter  between  the  plaintiff  and  the 
defendant,  the  statements  of  the  wife,  made  at  the  time,  may 
be  given  in  evidence  as  admissions  of  the  husband. 

Schutter  v.  Williams,   1   W.  L.  J.  310.   I  0.  D.  R.  47. 

(h)  Admissions  by  the  accused  in  a  foreign  language  may 
be  repeated  to  the  jury  in  English  by  the  one  who  heard  them, 
when  the  ability  of  the  witness  to  understand  and  translate 
the  language  is  first  put  before  the  jury. 

Riolo  V.  State,  19  C.  C.    (X.S.)   248. 

(i)  A  conversation  between  a  jail  prisoner  and  an  ac- 
quaintance, which  was  overheard  by  the  sheriff  who  had  con- 
cealed himself  for  that  purpose,  and  during  which  the  i  ris- 
oner  made  certain  inculpatory  statements,  is  admissible  in  evi- 
dence at  his  trial. 

Morrow  v.  State,   15   C.  C.    (X.S.)    561,  24  C.  D.   140. 

(j)  Where,  in  the  course  of  an  examination  by  physicians 
appointed  by  a  court,  the  accused  makes  admissions  as  to  his 
physical  condition,  they  are  admi.ssible,  even  though  the  court 
had  no  right  to  order  such  examination,  and  the  accused  dicj 
not  know  his  rights. 

Jones  V.  State,  20  C.  C.    (X.S.)    542. 


(k)  The  testimony  of  a  witness  to  the  effect  that  he  had 
told  plaintiff  that  defendant  had  made  admissions  that  certain 
property  in  his  possession  was  owned  by  his  wife,  and  plain- 
tiff"s  testimony  that  the  witness  had  informed  him  of  such  ad- 
missions were  admitted  in  the  trial-court.  The  circuit  court 
held  this  to  be  reversible  error,  as  the  witness  did  not  testify 
that  the  defendant  made  these  admissions.  The  supreme  court 
reversed  the  circuit  and  affirmed  the  common  pleas  court  pre- 
sumably because  the  meaning  of  the  witness  was  fairly  clear; 


§179  METZLER'S   OHIO   TRIAL    EVIDENCE  234 

and  if  the  defendant  had  made  no  such  admission,  he  should 
have  shown  it  by  cross-examination  or  otherwise. 

Benster  v.  Powell,  5  C.  D.  206,  11  C.  C.  401. 

Powell  V.  Benster,  58  O.  S.  735. 

(1)  Where  the  charge  was  that  a  debtor  was  placing  his 
property  beyond  the  reach  of  creditors,  evidence  was  admitted 
to  show  that  he  offered  to  sell  property  at  a  low  figure,  and 
to  accept  notes  and  a  mortgage  for  a  large  part  of  the  pur- 
chase price ;  and  that  he  had  declared  at  different  times  that 
he  was  execution-proof,  and  that  his  property  had  been  placed 
beyond  the  reach  of  creditors. 

Bank  v.  Latimer,  8  C.  C.   (N.S.)   503,  18  C.  D.  649. 

(m)  On  the  trial  of  a  party  indicted  for  bigamy,  admis- 
sions made  by  the  accused  prior  to  the  alleged  second  mar- 
riage, in  respect  to  the  alleged  former  marriage,  are  com- 
petent evidence  to  go  to  the  jury  in  support  of  the  averment 
of  the  former  marriage. 

Stanglein  v.  State,  17  0.  S.  453. 

Wolverton  v.   State,   16  Oh.   173. 

Bates  V.  State,   19  C.  D.   189,  9  C.  C.    (N.S.)    273,  282. 

(n)  Where  evidence  was  introduced  that  plaintiff  on  the 
day  of  his  injury  was  sleepy  and  inattentive  to  his  work,  and 
had  stated  that  he  was  at  a  dance  the  preceding  night,  evi- 
dence on  behalf  of  plaintiff  to  show  that  he  was  present  at  a 
choir  meeting  until  10  p.  m.  was  excluded  because  evidence 
was  not  offered  covering  the  entire  night.  It  seems  to  be 
held  also  that  this  was  evidence  of  an  admission  of  incapacity, 
and  that  no  evidence  would  be  admitted  to  show  that  the 
reason  said  to  have  been  given  by  plaintiff  was  false,  as  its 
truth  or  falsity  was  entirely  immaterial. 

Kathman  v.  Carlisle  &  Finch  Co.,  4  O.  L.  P.  135,  16  O.  D.  765. 

179.  ILLUSTRATIONS— WRITTEN. 

(a)  The  coroner's  evidence  and  finding  as  to  death  and 
cause  of  death  of  the  insured,  voluntarily  furnished  to  the 
company  in  compliance  with  the  conditions  of  the  policy,  are 
competent  as  admissions. 

Insurance  Co.  v.  Maguire,  19  C.  C.  502,  10  C.  D.  562. 


235  ADMISSIONS  §179 

(b)  When  it  becomes  material  to  prove  the  contents  of  a 
book  of  accounts  which  had  been  admitted  by  the  accused  to 
be  correct  and  true,  the  book  may  go  to  the  jury  as  evidence 
of  the  extent  and  nature  of  the  admission, 

Halleck  v.  State,   11   Oh.  400. 

Cf,  Stetson  v.  Bank,   12  O.  S.  577,  587. 

(c)  The  examination  of  a  debtor  under  Section  11768  of 
the  General  Code,  which  was  reduced  to  writing  and  signed 
by  him,  is  admissible  in  evidence  against  him  in  a  subsequent 
action  to  set  aside  his  deed  as  in  fraud  of  creditors,  when  such 
deed  was  the  subject  of  the  examination. 

Goode  V,  Patterson,  40  0.  S.  345. 

(d)  In  an  action  to  enforce  payment  of  the  Dow  tax,  when 
it  is  admitted  that  the  parties  had  liquor  in  their  house  but 
contended  that  they  were  for  their  own  exclusive  use,  evi- 
dence of  the  payment  of  the  internal  revenue  tax  for  the  sale 
of  intoxicating  liquors  and  obtaining  the  government  license, 
is  competent  against  the  one  making  the  payment  as  an  ad- 
mission that  he  was  engaged  in  the  business  of  trafficking  in 
intoxicating  liquors. 

Monte  V.  Pabst,  14  0.  D.  97. 

(e)  Where  a  written  instrument,  not  the  foundation  of  the 
action,  is  offered  in  evidence  by  a  person  not  a  party  to  the 
instrument  as  an  admission  of  the  adverse  party  touching  a 
matter  in  issue,  the  fact  that  it  is  not  stamped,  as  required  by 
the  act  of  Congress,  is  no  ground  of  objection  to  its  admission. 

Reis  V.  TTellman,  25  O.  S.  180. 

(f)  In  an  action  by  a  creditor  against  the  members  of  an 
alleged  partnership,  in  which  the  existence  of  a  partnership 
is  in  dispute,  it  is  proper  to  admit  in  evidence  a  written  con- 
tract entered  into  between  tlie  alleged  partners  shortly  before 
the  trial  of  such  case  by  which  they  agree  to  contribute  cer- 
tain fixed  amounts  to  the  payment  of  any  judgment  which 
might  be  rendered  against  them  in  such  case.  Such  contract 
is  an  admission  against  interest. 

Hermann  v.  Pohn,  8  O.  App.  303,  28  O.  C.  A.  280,  30  C.  D.  203. 


§180  METZLER'S   OHIO    TRIAL    EVIDENCE  236 

180.  WHOLE  STATEMENT  ADMISSIBLE. 

(a)  "Where  one  party  offers  in  evidence  a  part  of  a  decla- 
ration or  conversation  of  the  adverse  party,  the  latter  is  en- 
titled to  have  the  whole  of  such  declaration  or  conversation 
given  to  the  jury.  And  if  a  party's  admission  is  testified  to 
by  a  Avitness,  such  party  may  call  another  witness  and  show 
the  whole  conversation. 

Morehead  v.  State,  34  0.  S.  212. 
Blackburn  v.  State,  23  O.  S.  146. 
Railway  v.  l.saacs,   10  C.  D.  40.   IS  C.  C.   177. 

(b)  And  when  witnesses  are  called  to  contradict  the  plain- 
tiff by  proving  a  statement  denied  by  him.  they  may  be  cross- 
examined  by  plaintiff  as  to  further  statements  made  by  him 
in  the  same  conversation. 

Finnegan  v.   Sullivan,  4  C.  D.  292,   18  C.  C.   876. 

(c)  For  the  purpose  of  discrediting  the  testimony  of  a 
witness  who  testified  as  to  admissions  made  by  the  plaintiff  as 
to  the  cause  of  an  accident,  the  testimony  of  the  plaintiff's 
wife,  who  was  present  at  the  interview,  is  competent  not  only 
to  deny  that  plaintiff  made  such  admissions,  but  also  to  state 
everything  that  was  said  at  the  time,  not  as  evidence  of  how 
the  accident  occurred,  but  to  rebut  the  evidence  of  the  ad- 
mission. 

Railway  v.  Isaacs,   10  C.  D.  49,   IS  C.  C.   177. 

Cf.  Schutter  v.  Williams,   1    W.  L.  J.  319,   1    O.   D.  R.  47. 

(d)  But  where  testimony  as  to  a  conversation  between  the 
parties  is  introduced  by  the  plaintiff  for  the  purpose  of  prov- 
ing an  admission  by  the  defendant,  the  latter  party  is  not  for 
that  reason  entitled  to  introduce  evidence  of  his  own  subse- 
quent declarations  to  a  third  person. 

Wrede  v.  Steinkamp,   1   K.   P.   192,  2  O.   D.   198. 

(e)  And  when  a  party  calls  a  witness  to  prove  his  self- 
serving  declaration,  which  is  received  without  objection,  this 
does  not  furnish  such  party  any  right  to  the  admission  of 
other  similar  declarations  made  by  him  in  the  same  conversa- 
tion, to  the  admission  of  which  objection  is  made. 

Forrest  v.  State,  21   0.  S.  641. 


237  ADMISSIONS  §  181 

181.  ACQUIESCENCE. 

(a)  Admissions  may  be  implied  from  the  acquiescence  of 
a  party.  But  to  have  the  effect  of  an  admission,  the  acquies- 
cence must  exhibit  some  act  of  the  mind  and  amount  to  volun- 
tary demeanor  or  conduct  of  the  party. 

Gcigrer  v.  State,  70  0.  S.  400,  414. 

Rose  V.  State,   13  C.  C.  342,  7   C.   D.  220.  220. 

(b)  Nothing  can  be  more  dangerous  than  admissions  in- 
ferred from  acquiescence.  They  should  always  be  received 
with  caution ;  and  never  ought  to  be  received  at  all  unless  the 
evidence  is  of  direct  declarations  of  that  kind  which  naturally 
call  for  contradiction— some  assertion  made  to  the  party  with 
respect  to  his  right  which,  by  his  silence,  he  acquiesces  in. 

Rose  V.  State,   13  C.  C.  342,  7  C.  D.  226,  220. 
Cf.  Geiger  v.   State,  70  0.   S.  400,  415. 
Hoover  v.  State,  91  0.  S.  41,  8. 

(c)  The  fact  that  a  party  does  not  speak  when  he  would 
naturally  be  expected  to  speak  or  when  it  is  his  duty  to  speak, 
tends  to  impeach  his  testimony  when  he  afterwards  testifies  to 
facts  that  were  not  stated  before.  Where  an  employe,  who 
has  been  injured  in  an  accident,  fails  to  mention  one  of  the 
alleged  causes  at  the  time  his  statement  is  taken  after  the 
accident,  doubt  is  cast  upon  his  testimony  as  to  such  alleged 
cause,  Avhen  made  long  after  in  court  in  support  of  a  claim 
for  damages. 

Railway  v.  Vogel.'^oii,  3  C.  C.    (y.S.)    ."SSI.   13  C.  T).  301. 

(d)  "Where  three  defendants  were  sued  as  partners  and 
the  partnership  was  disputed,  the  plaintiff  offered  to  prove 
that  they  had  before  that  time  been  sued  as  partners  by  others 
and  had  suffered  judgment  to  pass  against  them  by  default. 
It  was  held  that  the  record  of  .such  judgment  could  be  given 
in  evidence  against  them  as  tending  to  prove  the  partnership. 

Marks  V.  Siglor.   3  0.   S.   3oS. 

(e)  Where  in  an  action  for  slander  for  charging  plaintiff 
with  intercourse  with  defendant's  husband,  it  appeared  that 
defendant  had,  a  few  days  after  such  intercourse  was  alleged 
to  have  occurred,  filed  her  petition  for  divorce  on  the  ground 
of  cruelty  M-ithout  making  any  charge  of  such  alleged  inter- 


5  181  METZLER'G    OHIO    TRIAL    EVIDENCE  238 

course,  such  petition   is  admissible  in  the  slander  suit  to  im- 
peach defendant's  later  statements. 

Stecn   V.   Frioiul.  20  C.  C.  4.-,n,    11    C.  D.  23.-,. 

(f)  Where  it  is  shown  that  statements  were  made  to  the 

accused  by  another  person,  which,  if  true,  tended  to  show  his 

guilt,    and    which    he    probably    heard,    and    which    naturally 

would  call  for  a  denial  or  explanation  from  him  if  untrue,  and 

he  remained  silent,  such  evidence  is  competent  to  go  to  the 

jury,  if  properly  cautioned,  as  tending  to  show  an  admission 

by  him  of  the  truth  of  the  statement  so  made  to  him. 

Haberty  v.  State,  4  C.  D.  402,  S   C.  C.  202. 
John   V.  State,  5  C.  C.    (N.S.)   200,    Iti  C.  D.  723. 
McLaughlin  v.  State,  20  C.  C.  (N.  S.)  402. 
Taddeo   V.   State,  22  C.  C.    (N.S.)    281,   3. 

(g)  Where  two  persons  charged  with  a  larceny,  having 
the  stolen  property  in  their  possession,  were  taken  into  cus- 
tody by  a  police  officer,  the  declarations  of  one  of  them  as- 
suming to  speak  for  and  implicating  both,  made  to  the  officer 
in  the  presence  and  hearing  of  the  other  person  charged  who 
remained  silent,  are  competent  evidence  for  the  state  on  the 
separate  trial  of  the  latter. 

Murphy  v.  State.  36  0.  S.  628. 

Aidt  V.  State,  2  C.  C.   18,  1   C.  D.  337. 

State  V.  Bair,  .50  Bull.   11. 

(h)  But  the  admission  of  testimony  as  to  conversations 
had  in  the  presence  of  a  prisoner  between  the  inspector  of 
police  and  prisoner's  son,  four  years  of  age,  in  regard  to  the 
killing  of  his  mother,  is  incompetent  as  evidence  where  the 
accused  is  given  no  opportunity  to  speak. 

Geiger  v.  State,  70  0.  S.  400. 

(i)  A  conversation  had  wdth  the  defendant  while  in  jail, 
whereby  certain  prejudicial  statements  made  by  a  person  not 
competent  to  be  a  witness  were  communicated  to  him,  can  not 
be  given  in  evidence  against  him  in  the  absence  of  guilty  con- 
duct and  of  an  admission  of,  or  acquiescence  in,  the  truth  of 
such  statements. 

Rose  V.  State,  7  C.  D.  226,  13  C.  C.  342. 


239  ADMISSIONS  §182 

(j)  The  testimony  of  the  coroner  as  to  what  insane  per- 
sons told  him  about  a  homicide  which  occurred  at  a  state  hos- 
pital, is  incompetent,  even  though  the  statements  were  made 
in  the  presence  of  the  accused.  The  defendant  was  not  called 
upon  to  answer  charges  of  insane  persons ;  and  in  court,  he 
was  entitled  to  meet  the  witnesses  face  to  face. 

Dawson  v.  State,  5  0.  App.   130,  25   C.  C.    (X.S.)    2r)7,  27  C.   D.   52. 

(k)  In  an  action  on  a  promissory  note,  testimony  that  de- 
fendant never  denied  the  signature  to  the  note  can  not  be 
converted  into  testimony  that  he  did  sign  it,  unless  attention 
"w^as  called  to  the  matter  in  such  a  way  as  to  call  for  an 
answer. 

Hauser  v.  Assel,  21    C.  C.  7S9,   12  C.  D.  336. 

Cf.  Woodruff  V.  IMontgomery,   11  C.  C.    (X.S.)    72,  20  C.  D.  426. 

Sliinew  v.  Bank.  84  0.  S.  297. 

(1)  Where  statements  of  fact  are  made  in  the  presence 
and  hearing  of  a  party  who  may  have  had  no  previous  knowl- 
edge of  the  truth  or  falsity  of  such  statements,  his  silence  is 
not  an  admission  that  he  previously  had  knowledge  of  the 
existence  of  the  facts  thus  stated. 

Griffith    V.   Zipperwick,   2S   0.   S.   388. 

(m)  In  an  action  against  an  administrator,  properly  sum- 
moned as  such,  who  appears  and  makes  a  defense,  and  prose- 
cutes error  to  the  common  pleas,  there  is  sufficient  evidence 
by  admission  of  his  capacity  as  administrator  without  formal 
proof  to  that  effect. 

Squires  v.  Martin,  5  C.  C.  (N.S.)  313,  14  C.  D.  232 

182.   FAILURE  TO  OFFER  EVIDENCE. 

(a)  The  ordinary  inference  where  a  party  fails  to  offer 
proof  of  what  he  ought  to  prove,  if  it  exists,  is  that  the  evi- 
dence would  have  been  unfavorable  to  him,  and  therefore  he 
withheld  it. 

Van  Ingen  v.  Peterson,  12  C.  C.    (N.S.)   253.  21  C.  D.  506. 
Telegraph    Co.   v.   Sullivan,   82  O.   S.    14.  23. 
(  f.  Boggs  V.  Haley,  22  C.  C.    (N.S.)    63. 

(b)  Where  a  party  to  an  action  offers  himself  as  a  witness 
and  is  not  asked  to  testify  concerning  a  matter  of  importance 


§182  METZLER'5    OHIO    TRIAL    EVIDENCE  240 

to  himself,  the  inference  is  that  he  was  not  inquired  of  con- 
cerning such  matter  because  his  answer  would  have  been  un- 
favorable to  himself. 

Grant  v.  Eailway,   10  C.   C.   362,  0  C.  D.  516. 

(c)  The  defendant  having  a  notice  to  vacate  in  his  pos- 
session, his  fai/ure  or  refusal  to  produce  it  upon  demand  there- 
for, would  be  some  evidence  that  the  contents  of  the  notice, 
if  produced,  would  be  against  his  contention  and  in  favor  of 
the  plaintiff. 

Ileller  ■«.  Beal,  3  C.  C.   (N.S.)    263,  13  C.  D.  540. 

(d)  "Where  the  nature  of  the  injury  suffered  by  the  plain- 
tiff was  in  issue  and  was  peculiarly  within  the  knowledge  of 
plaintiff's  phj'sician,  who  was  present  at  the  trial  under 
subpoena  of  plaintiff,  but  was  not  called  as  a  witness,  the  jury 
could  infer  that  if  called  his  testimony  wou-d  have  been  ad- 
verse to  the  plaintiff. 

Katafiasz   v.   Electric   Co..   14   (.   D.    127.    1    C.   C.    (X.P.)    120. 

(e)  Testimony  to  the  effect  that  a  person  who  has  been 
subpoenaed  as  a  witness  was  heard  to  make  a  certain  state- 
ment, is  corroborated  to  a  certain  extent  by  the  failure  to  put 
on  the  stand  the  person  alleged  to  have  made  the  statement. 
But  failure  of  a  party  to  contradict  evidence  is  not  a  judicial 
admission.     (See  Charge  in  Index.) 

Railway   v.   Butler.  3  C.  C.    (X.S.)    440.   13  C.  D.  459. 

(f)  Where  disinterested  witnesses  in  an  action  for  slander 
testify  positively  to  the  speaking  of  the  alleged  slanderous 
words,  the  fact  that  the  defendant  hears  the  testimony  and 
does  2iot  go  upon  the  stand  and  deny  it,  is  a  strong  circum- 
stance tending  to  prove  that  he  spoke  the  words  as  charged. 

Sinclair  v.  Fear.  4  0.  D.  26,  2  X.  P.  373. 

(g)  Where  it  is  shown  in  an  action  for  fraudulent  sale  of 
stock  that  plaintiff  was  present  at  a  meeting  of  the  directors, 
and  was  then  told  that  the  company  Avas  greatly  in  debt,  and 
that  the  debt  was  serious  and  had  to  be  provided  for,  and  that 
at  the  time  he  did  not  express  surprise  but  kept  quiet,  it  is 
competent  for  plaintiff  in  rebuttal  to  state  the  reasons  why  he 
did  not  make  a  .statement  at  that  time. 

Cable  V.  Bowlus,  21  C.  C.  53,   11   CD.  526. 


241  ADMISSIONS  §183 

(h)  "Where  it  becomes  important  for  the  defendant  to  ex- 
plain the  omission  to  call  a  certain  Avitness,  who  was  in  the 
employ  of  defendant  and  present  at  the  happening  of  a  stated 
event,  it  is  error  to  exclude  evidence  offered  by  the  defendant 
showing  that  no  record  was  kept  by  defendant  of  the  names 
and  addresses  of  employes. 

Railways  v.  Poland.  7  O.  App.  307,  27  O.  C.  A.  105,  28  C.  D.  168. 

183.  OFFER  TO  COMPROMISE. 

(a)  An  offer  to  compromise  made  in  good  faith  for  the 
purpose  of  buying  peace  and  avoiding  litigation,  can  not  be 
given  in  evidence  as  an  admission  of  the  party  making  it. 
Such  admissions  are  to  be  excluded  on  the  ground  of  public 
policy;  for  without  this  protective  rule,  it  would  be  difficult  to 
take  any  step  toward  an  amicable  adjustment  or  compromise. 

Sherer  v.   Piper,  26   0.  S.  476,  478. 
Hutcheson  v.  ^rcXutt,   1   Oh.  14,  2.3. 

(b)  The  fact  that  an  offer  to  compromise  the  matters  in 
dispute  between  the  parties  was  made,  is  incompetent,  either 
as  evidence  of  a  fact  from  wiiich  the  liability  of  the  party 
making  the  offer  may  be  inferred,  or  as  an  admission  of  such 
liability.  And  it  is  improper  for  an  attorney  to  mention  the 
fact  in  the  presence  of  the  jury,  that  such  an  offer  had  been 
made. 

fherrr   v.   Piper,   26   0.   S.   476. 
Railroad  v.   Burr,   82  O.   S.    120. 

(c)  In  a  controversy  as  to  the  amount  due  to  the  plain- 
tiff, it  is  prejudicial  error  to  admit  evidence  which  on  its  face 
shows  that  it  related  entirely  to  a  proposed  compromise 
settlement. 

Cincinnati    v.  Ilenkel,  3  O.   App.   330,  21    C.   C.    (N.S.)    21. 

(d)  It  is  proper  to  exclude  evidence  as  to  an  oral  execu- 
tory agreement  of  settlement  theretofore  entered  into  betAveen 
the  parties.  An  accord  with  mutual  promises  to  perform  is 
not  a  good  defense  if  there  is  no  performance  before  action  is 
brought.  Even  a  part  performance  is  not  sufficient  to  bar  the 
pre-existing  demand. 

Clay  Co.  V.  rhojnicki,  14  C.  C.   (X.S.)   599,  23  C.  D.  356. 
Frost  V.  Johnson,   8   Oh.   303. 


§  184  METZLER'S    OHIO    TRIAL    EVIDENCE  242 

(e)  Where  plaintiff  on  the  trial  put  in  evidence  part  of  an 
entry  in  defendant's  minute  book  to  show  an  admission,  and 
defendant  then  voluntarily  put  in  the  rest  of  the  entry  in 
order  to  show  that  the  entire  subject  of  the  entry  was  an  offer 
to  compromise,  it  is  error  to  refuse  to  charge  that  no  liability 
can  be  inferred  from  the  entry. 

Turnpike  Co.  v.  Coover,  25  0.  S.  558. 

(f)  An  offer  to  confess  judgment  is  not  to  be  deemed  an 

admission  of  the  cause  of  action,  nor  of  the  amount  to  which 

the  plaintiff  is  entitled ;  and  it  can  not  be  given  in  evidence  or 

mentioned  on  the  trial. 

Section   11395,  General  Code. 
Courtright  v.   Staggers,   15  0.  S.  511. 

(g)  The  fact  that  plaintiff  in  an  action  to  quiet  title  ob- 
tained and  accepted  a  quitclaim  deed  from  one  of  the  defend- 
ants can  not,  when  standing  alone,  be  construed  as  an  admis- 
sion of  cotenancy.  The  policy  of  the  law  is  to  encourage  the 
settlement  of  disputed  titles. 

Chambers  v.  Wilcox,   15  0.  D.  G29,  3  N.  P.   (N.S.)   269. 
If.  Sehulte  v.  Beineke,  0  0.  D.  529,  4  N.  P.  207. 

(h)  There  are  at  least  two  cases  where  admissions  are  not 
favored.  As  a  general  rule,  the  admission  of  a  party  outside 
of  court  will  not  be  received  in  evidence  to  prove  the  contents 
of  a  written  instrument.  (See  Index  for  primary  and  sec- 
ondary evidence.)  And  admissions  are  not  favored  in  cases  of 
divorce  and  alimony. 

See  Section    119SS,  General   Code. 

184.  SELF-SERVING  STATEMENTS— ORAL. 

(a)  It  is  a  general  rule  of  evidence  that  the  declarations 
of  a  party  are  admissible  in  evidence  against  him  but  not  in 
his  favor.  Conversations  between  i)arties  interested  upon  one 
side  of  a  controversy,  at  which  the  other  party  was  not  pres- 
ent and  had  no  means  of  knowing  of  it,  would  not  be  compe- 
tent to  show  the  actions  or  intentions  of  an  opposite  party. 

Kuhn  V.  Spice  Co.,  13  C.  C.  547,  7  C.  D.  289. 


243  ADMISSIONS  §184 

(b)  And  ^vhe^e  defendants  are  sued  as  partners,  tliey  will 
not  be  permitted  to  introduce  evidence  of  a  conversation  be- 
tween themselves,  when  the  plaintiff  was  not  present,  showing 
that  they  were  not  jointly  liable. 

Webster  v.  Paul,   10  0.   S.  531,  536. 

(c)  In  an  action  for  deceit  in  the  sale  of  a  business  to 

plaintiff,  proof  of  the  sum  for  which  plaintiff  offered  to  resell 

to    defendant    was    properly    excluded,    for    this    is    his    own 

declaration. 

Dokes  V.  Soards,  8  0.  D.  R.  621,  9  Bull.  76. 
Cf.  Summers   v.  Thomas   Co.,  82  0.  S.  338. 

(d)  A  party  suing  a  bank  on  bank-notes  which  he  alleges 
had  been  burned,  can  not  prove  his  declaration  at  the  time  of 
the  fire  to  establish  his  loss.  A  rule  admitting  it  would  allow 
a  rogue  to  show  his  declaration  that  he  had  burned  a  note  and 
make  that  evidence  of  the  existence  and  destruction  of  the 
note,  when  he  may  have  burned  only  worthless  paper. 

Burridge  v.  Bank,  Wright,  688. 

(e)  In  an  action  on  a  note  against  an  administrator,  the 
declarations  of  the  deceased  made  to  third  persons  in  the  ab- 
sence of  the  plaintiff  as  to  the  unfriendly  relations  existing 
between  himself  and  plaintiff  are  self-serving  and  incompetent 
to  show  that  the  deceased  could  not  have  borrowed  money  of 
plaintiff,  when  the  only  issues  are  as  to  execution  and  con- 
sideration. 

Beck  V.  Gage,  21   C.  C.    (X.S.)    160. 

Cf.  Cottell   V.  .State,  5  C.  D.  472,   12  C.  C.  4(i7,  472. 

(f)  Where  the  question  is  Avhether  the  decedent  was  the 
vendee  or  bailee  of  the  plaintiff,  the  decedent's  statement  that 
he  was  the  owner  of  the  property  is  not  admissible  in  evi- 
dence in  favor  of  his  administrator,  even  though  the  state- 
ment was  made  while  trying  to  sell  the  same. 

Cheeseman  v.  Kyle,  15  0.  S.  15. 

(g)  Declarations  of  a  grantor,  made  in  the  absence  of  the 
grantee,  are  not  competent  evidence  in  an  action  between  the 
latter  and  the  heirs  of  the  grantor  to  prove  that  undue  influ- 
ence or  fraud  was  used  in  procuring  the  deed  of  conveyance. 
But  statements  of  tlic  grantor  Avhicli  tend  to  rebut  the  claim 


§  185  METZLER'S    OHIO    TRIAL    EVIDENCE  244 

of  fraud,  Avhether  made  before  or  after  the  signing  of  the 
deed,  are  admissible  as  admissions  or  declarations  against 
interest. 

Gay  V.  Gay,  26  0.   S.   402. 

McAdams  v.  McAdams,  SO  0.  S.  232. 

(h)  A  self-serving  statement  may  not  be  prejudicial.  In 
an  action  for  recovery  under  a  contract,  the  admission  of 
statements  made  by  the  defendant  which  have  no  bearing 
upon  the  question  of  his  liability  are  not  prejudicial,  even 
though  they  were  not  made  in  the  presence  of  the  plaintiff. 

Monroe  v.  Peebles'  Sons  Co.,  13  C.  C.    (N.S.)    174,  22  C.  D.  373. 

185.  SELF-SERVING  STATEMENTS— EXCEPTIONS. 

(a)  However,  the  declarations  of  a  party  are  admissible 
in  his  favor  for  the  purpose  of  showing  the  state  of  his  mind 
when  that  is  material.  In  an  action  to  recover  the  amount  of 
a  note  paid  twice  by  mistake,  the  declarations  of  the  maker 
recognizing  the  note  as  subsisting  after  it  had  been  paid,  are 
admissible  in  his  favor  to  show  his  belief  that  it  had  not  been 
paid. 

Xorman  v.  Will,  5  W.  L.  J.  508,  1  0.  D.  R.  261. 

(b)  If  it  be  sought  to  charge  a  person  with  fraud  and  de- 
ceit in  representing  another  as  worthy  of  credit,  he  may,  for 
the  purpose  of  repelling  the  imputation  of  fraud,  prove  what 
he  had  said  he  thought  such  person  worth  prior  to  the  time  of 
making  the  statement  charged  to  be  false, 

IMcCracken   v.   West,    17   Oh.    16. 

(c)  And  upon  the  trial  of  an  issue  respecting  the  capacity 
of  a  party,  by  reason  of  his  intoxication,  to  enter  into  a  con- 
tract of  sale,  it  is  competent  to  introduce  in  his  behalf  evi- 
dence of  his  declarations  respecting  the  value  of  the  property, 
made  by  him  recently  before  the  contract  was  made  and  while 
he  was  sober. 

Baird  v.  Howard,  51  0.  S.  57. 


245  ADMISSIONS  K  IQQ 

186.  SELF-SERVING  STATEMENTS— WRITTEN. 

(a)  As  between  the  parties  to  an  instrument,  the  execu- 
tion is  presumed  to  have  taken  place  on  the  date  stated  in  the 
instrument.  But  a  paper  ])urporting  to  be  an  assignment  by 
one  of  the  plaintiffs  to  the  other  plaintiffs  is  not  evidence  that 
it  Avas  made  on  the  day  on  which  it  bears  date;  for  this  would 
be  allowing  the  plaintiffs  to  make  a  case  against  the  defend- 
ant by  their  own  declarations. 

Pugh   V.   Holliday,   3   0.    S.   284. 

Cf.   Hutchinson   v.   Bank,  3  O.   S.   490. 

(b)  Entries  in  a  stock-ledger  showing  the  transfer  of  cer- 
tain stock  of  the  corporation  that  was  represented  by  a  cer- 
tificate which  was  not  surrendered,  are  self-serving  declara- 
tions; and  they  are  not  admissible  in  an  action  to  compel  the 
issuance  of  a  new  certificate  to  the  administrator  of  the  holder 
of  the  unsurrendered  certificate,  in  the  absence  of  evidence 
that  the  original  owner  acquiesced  in  or  had  knowledge  of  the 
making  of  such  entries. 

Russell  V.  Bank,  26  C.  C.    (X.S.)    520. 

See  Russell  v.   Bank,  23   C.  C.    (N.S.)    1,  4  0.  App.  378,  27   C.  D.    17. 

(c)  Book  entries  made  by  a  partner  are  not  competent  to 
prove  that  a  dissolution  had  been  agreed  on,  when  there  is 
nothing  to  show  that  the  other  partner  had  consented  to  the 
entries.  A  written  statement  made  by  a  party  after  the  event 
will  not  be  admitted  to  substantiate  his  own  evidence. 

Voight  Sons'  Co.  v.  Lafkin,  6  C.  D.  124,  12  C.  C.  7ol. 

(d)  A  guarantor  of  a  note  being  sued  by  a  bank  and 
claiming  that  in  going  to  the  bank  to  pay  it  when  due,  he  was 
told  it  had  been  paid,  a  memorandum  of  an  officer  of  the  bank 
pinned  to  the  note  showing  an  extension  of  time  consented  to, 
is  not  competent. 

Trust  Co.  V.   Campbell,   16   C.  C.    (X.S.)    348. 

(e)  Where  the  plaintiff  offers  in  evidence  telegrams  from 
defendants  instructing  him  to  buy,  to  show  that  he  was  in 
their  employ,  they  can  not  rebut  the  admission  by  evidence  of 
like  telegrams  sent  by  them  to  others  not  in  their  employ. 

Jennings   v.   TTavncs,   1   C.  C.  22,    1   C.   D.    13. 


§186  METZLER'S   OHIO   TRIAL    EVIDENCE  246 

(f)  The  books  of  a  railroad  company,  such  as  the  register 
of  trains,  kept  solely  for  its  own  use,  are  not  admissible  as 
evidence  when  offered  by  the  company  in  an  action  against  it 
by  a  stranger  claiming  damages  for  negligence.  But  such 
books  are  competent  as  an  admission  of  the  defendant  com- 
pany when  offered  in  behalf  of  the  plaintiff,  although  pro- 
duced by  the  custodian  and  not  by  the  person  who  made  them. 
A  record  was  admitted  to  show  the  presence  of  cars  on  an 
intervening  track  obstructing  the  view  at  the  time  of  the 
accident. 

Railroad  v.  Cunnington.  39  0.  S.  327. 

Railway  v.   Parker,  9   C.  C.    (N.S.)    28,   19   C.  D.   1. 


CHAPTER  XIV. 

CONFESSIONS. 

1S7.  Preliminary    examination. 

188.  Involuntary   confessions. 

189.  Voluntary  confessions — Principles. 

190.  Confessions  before   the  grand   jury. 

191.  Confessions  of  joint   parties. 
102.  Province   of  jury. 

193.  Proof   of   the   corpus   delicti. 

187.  PRELIMINARY  EXAMINATION. 

(a)  Xo  confession  can  be  received  in  evidence  in  a  crim- 
inal case,  unless  it  was  voluntary.  A  confession  induced  by 
hope  or  fear,  excited  in  the  mind  of  the  prisoner  by  the  rep- 
resentations or  threats  of  any  one,  is  not  to  be  considered  as 
voluntarj^  The  question  in  every  case,  where  a  confession  has 
followed  representations  or  threats,  is,  Was  it  produced  by 
them?  This  question  is  to  be  decided  by  the  judge,  if  evidence 
of  the  confession  is  objected  to  when  offered. 

Spears  v.   State,  2  0.   S.  583. 
Lefevre  v.  State,  50  0.  S.  584. 

(b)  If  the  representations  or  threats  were  made  by  or  in 
the  presence  of  a  person  having  authority  or  control  over  the 
prosecution  of  the  accused,  it  is  to  be  presumed  that  the  con- 
fession was  produced  by  such  representations  or  threats,  un- 
less it  appears  that  their  influence  was  totally  done  away 
before  the  confession  was  made.  If,  on  the  other  hand,  the 
representations  or  threats  were  made  by  a  person  having  no 
such  authority  or  control  and  not  in  such  presence,  it  is  not 
necessarily  to  be  presumed  that  they  induced  the  confession. 

Spears   v.    State,  2   O.    S.   583. 

Cf.   Rufer   v.   State,    25    0.   S.   464,    70. 

(c)  In  such  a  case,  the  judge  is  to  determine  how  the  con- 
fession Avas  produced,  by  looking  at  the  circumstances,  among 
which  are  the  strength  or  weakness  of  the  prisoner's  intellect, 

247 


§187  METZLER'S    OHIO    TRIAL    EVIDENCE  248 

his  knowledfre  or  ignorance.  If  satisfied,  however,  that  the 
confession  was  produced  by  the  representations  or  threats,  the 
court  can  not  receive  it  in  evidence  because  the  prisoner  had 
sufficient  mind  or  knowledge  to  detect  the  groundlessness  of 
the  representations  or  threats;  for  the  strongest  mind  is  liable 
to  be  unhinged,  and  the  question  is  not  what  the  prisoner 
ought  to  have  believed,  but  what  did  he  believe. 

Spears  v.  State,  2  0.  S.  583. 

State  V.  Sunnuons,  9  W.  L.  J.  407.  1  O.  D.  R.  416. 

See  State   v.    Knapp,   70  O.   S.   380. 

(d)  Confessions  are  generally  made  when  the  prisoner  is 
under  arrest,  and  often  when  his  mind  is  agitated  and  over- 
whelmed with  distress  and  under  a  .sense  of  degradation  and 
desertion  by  the  world,  when  every  ray  of  hope  is  eagerly 
caught  at.  and  when  the  delusive  idea  of  personal  safety  may 
easily  beguile  him  into  expressions  or  disclosures  in  compli- 
ance with  the  wishes  or  solicitations  of  those  around  him,  and 
especially  those  charged  with  his  custody. 

Fonts  V.  State,  8  O.  S.  98.  108. 

(e)  The  burden  of  showing  that  a  confession  of  guilt  was 
obtained  by  improper  inducements  rests  with  the  defendant. 
And  where  a  witness  is  offered  by  the  state  to  prove  a  con- 
fession made  by  the  defendant,  to  the  admission  of  which 
testimony  the  defendant  objects  on  the  ground  that  the  con- 
fession was  not  voluntary,  it  is  the  right  of  the  defendant  to 
inquire  of  the  witness  and  prove  his  objection  before  the  con- 
fession is  given  in  evidence. 

Rufer  V.  State.  2.5  0.  S.  464. 
Lefevre  v.  State,  50  0.  S.  584,  588. 

(f)  It  is  error  for  the  court  to  refuse  the  defendant  leave 
to  make  such  examination  until  after  the  examination  in  chief 
has  been  concluded  and  the  confession  given  to  the  jury.  But 
a  judgment  will  not  be  reversed  for  refusing  the  defendant 
leave  to  show,  by  preliminary  proof,  that  the  confession  was 
obtained  by  improper  inducements,  unless  the  facts  constitut- 
ing the  alleged  inducements  as  proposed  to  be  proved,  are  set 
out  in  the  record. 

Rufer  V.  State,  25  0.  S.  464. 


249  CONFESSIONS  §188 

(g)  Upon  the  preliminary  inquiry  had  before  the  judge  to 
determine  the  question  whether  the  confession  was  voluntarj^ 
the  defendant  may  introduce  pertinent  evidence  in  addition  to 
that  which  results  from  the  preliminary  examination  and 
cross-examination  of  the  witness  produced  to  testify  to  the 
confession. 

Lefovre   v.   State,   50   0.   S.   584. 

(h)  Where  confessions  of  the  defendant  are  offered  in  evi- 
dence on  a  criminal  prosecution,  and  it  is  claimed  that  they 
were  not  voluntary,  the  preliminary  proof  as  to  whether  they 
were  obtained  by  the  influence  of  hope  or  fear  may,  if  the 
evidence  is  conflicting,  be  submitted  by  the  court  to  the  jury 
under  instructions  to  disregard  the  evidence  if  satisfied  that 
the  confessions  were  involuntary. 

Biirdge  v.  State,  53  O.  S.  512. 

(i)  Statements  in  the  nature  of  a  confession  are  insuffi- 
cient when  it  does  not  appear  that  they  related  to  the  charge 
in  the  indictment.  Where  confessions  of  embezzlement  by  the 
accused  are  so  lacking  as  to  time  and  amount  as  to  render  it 
impossible  to  determine  whether  reference  is  made  to  sums 
received  before  or  after  a  change  in  the  statute,  the  con- 
fessions are  incompetent. 

Cochran  v.  State,  25  C.  C.   (N.S.)   430. 

Young  V.  State,  6  C.  C.   (N.S.)    53,  16  C.  D.  747. 

(j)  The  jury  may  be  excluded  from  the  preliminary  hear- 
ing by  the  court ;  whether  or  not  such  preliminary  inquiry 
shall  be  conducted  in  the  presence  and  hearing  of  the  jury, 
rests  in  the  sound  discretion  of  the  trial-judge. 

Lefevre  v.  State,  50  0.  S.  584, 

188.  INVOLUNTARY  CONFESSIONS. 

(a)  It  is  well  settled  that  confessions  of  guilt  made 
through  the  influence  of  hopes  or  fears,  that  is,  induced  by 
promises  of  temporal  benefit  or  threats  of  disadvantage,  are 
wholly  inadmissible.  If  the  confession  is  induced  by  promises 
of  immunity  made  by  an  officer,  or  his  agent,  or  induced  by 


§188  METZLER'S    OHIO    TRIAL    EVIDENCE  250 

threats  or  fear  of  injury  emanating  from  an  officer,  it  will  not 
be  admitted. 

Kufer  V.   State.  25  0.   S.  464,  470. 

Wade  V.  State,  2  C.  C.    (N.S.)    189,  1.5  C.  D.  279,  286. 

Searles  v.  State,  3  C.   D.  478,  G  C.  C.  331. 

(b)  As  the  law  can  not  measure  the  effect  of  promises  or 

threats  upon  the  mind  of  a  prisoner,  confessions  are  excluded 

if  it  appears  that  any  degree   of  influence  has  been  exerted 

over  the  mind  of  the  prisoner  to  procure  them. 

Fouts  V.  State,  8  0.  S.  98,   108. 

Searles  v.  State,  3  C.   D.  478,  6   C.  C.   331. 

(c)  The  claim  that  statements  made  by  an  accused  person 
under  circumstances  showing  that  they  were  influenced  by 
fear  were  not  confessions,  but  were  mere  admissions,  does  not 
make  them  competent  evidence  against  him  where  they  con- 
stitute conclusive  evidence  with  reference  to  the  crime 
charged. 

Kohn  V.  State,    12   C.   C.    (X.S.)    197. 

(d)  Confessions  of  a  person  accused  of  crime  obtained 
under  promise  of  clemency  held  out  by  the  prosecutor,  are 
incompetent  as  evidence.  When  the  court  has  knowledge  that 
the  prosecutor  procured  the  confession  in  the  form  of  a  plea 
of  guilty  under  a  promise  of  clemency  by  the  court,  it  is  the 
duty  of  the  court  to  inform  the  accused  that  the  court  is  not 
bound  by  the  promise  and  that  the  plea  should  be  withdrawn. 

Jones  V.  Columbus,   15   0.  D.   691,  2   0.  L.  K.  402. 

Cf.  State  V.  Ice  Co.,  .4  N.  P.    (N.S.)    361,   16  0.  D.  735. 

(e)  Where  a  person  suspected  of  crime  is  taken  to  a  pri- 
vate office  and  questioned  for  two  days  and  nights,  regarding 
circumstances  surrounding  the  crime,  and  is  kept  under  re- 
straint until  released  by  habeas  corpus,  and  is  repeatedly  told 
that  if  he  would  tell  the  truth  he  would  be  allowed  to  go,  his 
interrogators  assuming  to  be  the  final  arbiters  of  what  was  the 
truth,  it  is  evident  that  his  statements  were  influenced  by  fear 
of  further  restraint  or  the  hope  of  regaining  his  liberty,  and 
such  statements  can  not  be  regarded  as  voluntary. 

Kohn   V.   State,    12   C.   C.    (X.S.)    197. 


251  CONFESSIONS  §189 

(f)  Confessions  that  are  not  voluntarily  made  are  ex- 
cluded on  the  ground  that  they  are  probably  not  true.  An- 
other ground  for  the  exclusion  is  that  it  is  a  violation  of  the 
constitutional  provision  that  no  man  shall  be  required  to  give 
evidence  against  himself;  for,  if  he  is  required  or  compelled 
by  threats  or  induced  by  hopes  to  make  a  confession  against 
himself,  it  is  an  indirect  method  of  compelling  him  to  give 
evidence  against  himself  when  statements  made  under  such 
circumstances  are  afterwards  proven  against  him  in  court. 

Wade  V.  State,  2  C.  C.   (KS.)    180,  15  C.  D.  270,  286. 

189.  VOLUNTARY  CONFESSIONS— PRINCIPLES. 

(a)  A  free  and  voluntary  confession  is  one  of  the  most 
satisfactory  proofs  of  guilt;  for  an  innocent  person  will  not 
voluntarily  subject  himself  to  infamy  and  liability  to  punish- 
ment by  false  statements  against  himself. 

Fonts  V.  State,  8  0.  S.  08,   107. 

Wade  V.  State,  2  C.  C.   (N.S.)    189,  1.5  C.  D.  270,  286. 

(b)  A  confession  is  voluntary  and  is  competent  evidence 
against  the  person  making  it  when  it  appears  that  no  threats 
or  promises  were  used  in  obtaining  it ;  and  that  before  the 
making  of  the  confession,  the  person,  to  whom  it  was  made, 
who  was  not  an  officer,  informed  the  accused  that  he  had  no 
power  to  grant  him  immunity  from  punishment,  but  if  he 
Avished,  he  could  speak. 

Wade  V.  State.  2  C.  C.   (N.S.)    189,  15  C.  D.  279. 

(c)  "When   the   accused  is   with  his   own   consent  placed 

under  oath  by  the  coroner,  he  being  cautioned  that  he  need 

make  no  statement  tending  to  injure  or  criminate  himself,  his 

confession  ol  crime  will  not  be  excluded  as  evidence  because 

it  was  made  to  a  police  officer,  or  to  a  coroner  engaged  in  an 

inquest  over  the  deceased  victim,  nor  because  the  accused  is 

told  he  had  better  tell  the  truth,  nor  because  it  is  accompanied 

with  emotion  or  distress. 

State  V.  Lenth,  5  C.  C.  04,  .3  C.  D.  48. 
See  Fouts  v.  State,  8  O.  S.  08,   108. 

(d)  A  confession  made  by  the  accused  while  in  custody  of 
an  officer  before  a  warrant  has  been  issued  is  voluntary,  where 


§189  METZLER'S   OHIO   TRIAU    EVIDENCE  252 

no  promise  of  advantage  was  made  to  induce  it,  but  merely  a 
pressure  to  tell  the  truth  because  it  would  be  best,  and  where 
the  prosecuting  attorney  had  told  the  accused  that  a  confess- 
ion would  not  induce  clemency,  and  that  if  innocent  he  ought 
to  assert  his  innocence  to  the  last. 

Sharkey  v.  State,  4  C.  C.  101,  2  C.  D.  443. 

(e)  Testimony  of  the  confession  of  the  accused  in  a  crim- 
inal prosecution  is  not  incompetent  because  the  confession  is 
made  under  advice  that  if  he  was  guilty,  the  confession  could 
not  put  him  in  any  worse  condition,  and  that  he  had  better 
tell  the  truth  at  all  times. 

Fouts  V.  State,  8  0.  S.  98. 

(f)  "Where  evidence  of  a  confession  is  excluded  because 
induced  by  promises  made  by  an  officer  having  custody  of  the 
prisoner,  but  the  prisoner  on  a  subsequent  day  voluntarily 
goes  on  the  stand  and  is  sworn  and  examined  as  a  witness  in 
his  own  behalf  on  his  examination  before  a  magistrate  on  such 
charge,  and  he  is  cautioned  by  the  magistrate  before  testify- 
ing that  he  need  not  say  anything  to  criminate  himself,  and 
that  what  he  may  say  may  be  used  against  him.  a  confession 
made  in  such  testimony  may  be  proved  by  the  state  on  the 
subsequent  trial  of  such  person  charged  with  the  crime.  But 
when  a  confession  has  been  obtained  in  a  similar  manner,  and 
it  was  voluntarily  repeated  by  the  accused  before  a  magis- 
trate without  being  cautioned  by  the  magistrate  and  without 
additional  solicitation,   both  confessions  should  be   excluded. 

Jackson  v.  State,  39  0.  S.  37. 

Nichols  V.   State,  1  W.  L.  J.  394,   1   0.  D.  R.  35. 

(g)  In  order  to  exclude  evidence  of  confessions,  it  is  not 
enough  to  show  that  they  were  made  to  an  officer  having  him 
in  custody,  and  were  induced  by  a  false  assurance  that  an 
accomplice  had  given  information  of  the  crime,  if  it  also  ap- 
pears that  nothing  was  said  or  done  calculated  to  induce  a 
hope  of  advantage  from  confession,  or  fear  of  harm  from  its 
refusal.  The  fact  that  he  was  a  prisoner,  and  that  a  fraud 
was  practiced  upon  him,  are  not  sufficient.  They  have  no 
tendency  to  make  him  swerve  from  the  truth. 

Price  V.  State,   18  O.  S.  418. 

Wade  V.  State,  2  C.  C.   (N.S.)    189,  15  C.  D.  279,  288. 


253  CONFESSIONS  §190 

(h)     The  rule  safeguarding  the  riglits  of  a  prisoner  which 

api)lies  to  extrajudicial  confessions,  should  not  necessarily  be 

applied  to  a  confession  made  in  court.     When  there  was  no 

promise  of  leniency,  the  severity  of  the  sentence  is  not  ground 

for  vacating  it. 

State  V.  Ico  Co.,  4  N.  P.    (N.S.)    361,  16  0.  D.  735. 
Cf.  Jones  V.  Columbus,  15  0.  D.  691,  2  0.  L.  R.  402. 

(i)  The  testimony  of  the  magistrate  before  whom  the  ac- 
cused was  brought  for  his  preliminary  examination,  that  he 
privately  admitted  his  guilt,  is  competent  evidence  at  his  sub- 
sequent trial  in  the  common  pleas  court. 

Smith  V.  State,  15  C.  C.   (N.S.)   223. 

(j)  Statements  of  third  persons  to  the  accused  charging 
him  with  crime,  and  his  conduct  or  replies  in  response  thereto 
are  admissible  in  evidence.  The  rule  excluding  involuntary 
confessions  does  not  apply  to  such  statements  of  third  persons. 

McLaughlin  v.  State,  20  C.  C.   (N.S.)   402. 

Taddeo  v.  State,  22  C.  C.   (N.S.)   281,  3. 

(k)  "Where  a  signed  confession  details  the  defendant's 
connection  with  the  crime  charged  and  also  contains  an  ac- 
count of  flight  shortly  following  the  crime  and  the  actions  of 
himself  and  one  or  more  of  his  confederates,  the  entire  con- 
fession is  competent  and  relevant ;  but  if  improper  or  irrele- 
vant statements  are  incorporated  therein,  they  may  be  ex- 
cluded by  the  court. 

State  V.  Doty,  94  0.  S.  258. 

190.  CONFESSIONS  BEFORE  THE  GRAND  JURY. 

(a)  Where  a  man  charged  Avith  murder  voluntarily  goes 
before  the  grand  jury  and  makes  a  statement  of  what  he 
knows  about  the  case,  and  afterwards,  during  the  trial,  at  a 
preliminary  examination  had  in  the  absence  of  the  jury  to 
determine  the  circumstances  under  which  sucli  statement  was 
made  and  whether  it  was  voluntary,  he  testifies  tlint  his  state- 
ment before  the  grand  jury  is  true,  and  it  is  shown  to  have 
been  made  Avitli  tlie  knowledge,  consent  and  iijidor  the  advice 
of  his  counsel,  evidence  of  his  statement  before  the  grand 
jury  is  eomjietent  against  him  upon  his  trial. 

Wade  V.  State,  2  C.  C.    (N.S.)    189,   15  C.  D.  279. 

Cf.  State  V.  Bair,  50  Bull.  11. 


§191  METZLER'S    OHIO   TRIAL    EVIDENCE  254 

(b)  Testimony  by  the  accused  before  the  grand  jury  that 
he  was  not  guilty,  but  knew  how  the  murder  was  committed, 
may  be  admitted  at  the  trial,  together  with  other  incriminat- 
ing statements  and  admissions  on  his  part  as  showing  guilty 
knowledge. 

Williams  v.   Rtate,    11    C.  C.    (N.S.)    4,  20   C.  D.   342. 

(c)  The  court  has  no  discretion  to  permit  a  disclosure  of 
the  proceedings  before  the  grand  jury  except  in  the  actual 
trial  of  the  case,  where  the  testimony  of  a  witness  is  a  matter 
of  issue  in  determining  the  facts  Avhich  are  to  be  weighed  by 
the  jury. 

State  V.   Haiitfli,  4   N.   P.    (X.S.)    79,    16   0.   D.   477. 
Baiim   V.   State,   6   C.   C.    (N.S.)    515,   17   C.  D.  569. 

(d)  But  a  motion  will  not  lie  to  compel  an  official  sten- 
ographer to  produce  for  the  use  of  the  accused  a  transcript  of 
all  tlie  evidence  for  inspection  or  to  produce  a  copy  of  testi- 
mony given  by  the  accused  before  the  grand  jury  which  in- 
dicted him. 

State  V.  Gibbs,  !!  N.  P.  (N.S.)  129,  20  O.  D.  1. 

State  V.  Haugh,  4  N.   P.    (N.S.)    79,   16   0.   D.  477. 

State  V.  Rhoads,   81   0.   S.   397. 

State  V.  Hoover,   17  N.  P.    (N.S.)    65,  24  0.  D.  212. 

191.  CONFESSIONS  OF  JOINT  PARTIES. 

(a)  Voluntary  confessions  are  evidence  only  against  the 
person  himself  who  confesses,  and  not  against  other  persons, 
although  they  may  have  been  proved  to  be  his  accomplices. 
In  an  arson  case,  a  statement  of  the  owner  that  he  had  em- 
ployed the  accused  to  bum  his  property,  which  statement  was 
made  after  the  fire  and  not  in  connection  with  any  effort  of 
the  owner  to  collect  the  insurance,  is  not  admissible  against 
the  accused. 

Morrison  v.  State,  5  Oh.  43.S,  439. 
Dilclier  V.  State,  42  0.  S.   173,   177. 
Scarles   v.    State,   6   C.   C.   331,   3   V.   D.   47S. 

(b)  Upon  the  trial  of  a  person  indicted  under  Section 
12380  of  the  General  Code  for  procuring  another  to  commit  an 
offense,  it  is  not  competent  to  prove  the  declarations  of  the 


255  CONFESSIONS  §  192 

principal  offender  made  after  the  completion   of  the  offense, 
for  the  purpose  of  showing  the  guilt  of  the  procurer. 
Sharpe  v.  State,  29   0.  S.  263. 

(c)  In  a  prosecution  for  concealing  a  horse  thief,  it  is 
not  competent  for  the  prosecutor  to  prove  the  confessions  of 
the  alleged  thief  in  the  presence  of  the  defendant,  to  establish 
the  fact  that  the  horse  had  been  stolen.  But  they  would  be 
admissible  to  show  knowledge  if  the  theft  was  otherwise 
proved. 

Morrison  v.  State,  5  Oh.  438,  440. 
Cf.  Murphy  v.  State,  36  0.  S.  628. 

192.  PROVINCE  OF  JURY. 

(a)  In  a  criminal  prosecution,  when  the  state  offers  in 
evidence  against  the  accused  a  part  of  a  declaration  or  con- 
versation, the  defendant  is  entitled  to  have  the  whole  of  it 
given  to  the  jury.  The  whole  declaration  or  conversation,  and 
each  part  thereof,  as  well  that  which  tends  in  his  favor  as 
against  him,  is  entitled  to  such  weight  as  is  fairly  due  to  it  in 
the  judgment  of  the  jury.  There  is  no  rule  of  law  which  re- 
quires the  jury  to  reconcile  the  whole,  if  possible,  wdth  the 
fact  of  innocence. 

Morehead   v.   State,   34   0.   S.   212. 
Murphy    v.    Ilagerman,   Wright,    293. 

(b)  Where  statements  of  a  prisoner  are  given  in  evidence 
against  him,  the  exculpatory  parts  thereof  as  w^ell  as  those 
which  import  guilt  are  to  be  received  as  evidence ;  and  it  is 
the  province  of  the  jury  in  the  light  of  all  the  evidence  in  the 
case,  to  decide  upon  the  truth  or  falsehood  of  such  exculpatory 
parts. 

Blackburn  v.  State,  23  0.  S.  146. 

(c)  AYhile  all  that  the  defendant  said  at  the  time  should 
be  considered  by  the  jury  and  should  have  its  just  weight,  it 
does  not  follow  that  all  of  it  is  entitled  to  equal  credit.  For 
good  reasons,  one  part  of  it  may  be  received  as  true  and  an- 
other part  rejected  as  false. 

Schneider  v.  State,  2  C.  C.  420,  1  C.  D.  565. 


'§193  METZLER'S    OHIO    TRIAL    EVIDENCE  256 

(d)  And  it  is  not  error  to  refuse  to  instruct  the  jury  that 
they  have  no  right  to  reject  or  disregard  such  exculpatory 
parts  unless  there  is  some  other  evidence  in  the  case  showing 
them  to  be  false,  or  unless  they  are  so  unreasonable  or  absurd 
as  to  be,  in  the  opinion  of  the  jury,  unworthy  of  credence. 

Blackburn  v.  State,  23  O.  S.  146. 

(e)  After  a  confession  in  writing  was  admitted  in  evi- 
dence, objection  was  made  to  the  introduction  of  the  prior 
oral  confession;  and  the  court  held  that  while  a  confession 
reduced  to  writing  is  best  proved  by  the  writing,  a  prior  oral 
confession  is  not  merged  into  the  writing  as  oral  negotiations 
are  merged  into  a  written  contract,  and  that  both  the  oral  and 
the  written  confessions  may  go  to  the  jury. 

State  V.  Leuth,  5   C.  C.  94,   3   C.  D.  4S. 

(f)  Where  the  prisoner  has  made  a  written  confession  ad- 
mitting that  he  has  perpetrated  the  crime  charged  in  the 
indictment,  and  other  crimes,  and  the  whole  of  the  confession 
is  offered  by  the  state  and  is  objected  to  on  the  part  of  the 
defendant,  it  is  not  error  to  allow  the  whole  confession  to  go 
to  the  jury  when  the  court  at  the  time  instructs  the  jury  that 
it  is  admitted  only  to  prove  the  killing  of  the  person  named 
in  the  indictment,  and  that  they  should  disregard  any  portion 
of  the  confession  which  does  not  relate  to  such  killing;  and 
further  that  they  should  not  permit  the  statements  in  the  con- 
fession to  prejudice  them  against  the  defendant,  for  the  rea- 
son that  they  were  only  trying  him  on  the  charge  of  killing 
alleged  in  the  indictment. 

State  V.  Knapp,  70  0.  S.  3S0. 

(g)  The  parties  in  a  criminal  case  have  no  legal  right  to 
demand  that  a  signed  confession  be  sent  to  the  jury  upon  their 
retirement.  When  the  writing  contains  no  irrelevant  and 
prejudicial  statements,  the  trial-court  may,  in  its  discretion, 
send  such  a  confession  to  the  jury-room. 

State  V.  Doty,   94  0.   S.  258. 

193.  PROOF  OF  THE  CORPUS  DELICTI. 

(a)  Before  a  confession  is  admissible,  there  must  be  some 
evidence   outside   of   the   confession   tending   to    establish    the 


257  CONFESSIONS  §  193 

corpus  delicti.  This  means  the  body  or  substance  of  the  crime, 
included  in  Avhieh  are  usually  two  elements:  (1)  the  act,  and 
(2)  the  criminal  agency  of  the  act.  The  quantum  or  weight 
of  such  outside  or  extraneous  evidence  is  not  of  itself  to  be 
equal  to  proof  beyond  a  reasonable  doubt,  nor  even  enough  to 
make  it  a  prima  facie  case.  It  is  sufficient  if  there  is  some 
evidence  outside  of  the  confession  that  tends  to  prove  some 
material  element  of  the  crime  charged. 
State  V.  :\raranda.  04  O.  S.  3r4. 

(b)  Proof  of  extrajudicial  confessions,  standing  alone,  is 
not  sufficient  to  prove  the  body  of  the  crime  in  cases  of  homi- 
cide. They  may,  however,  be  considered  as  evidence  and  used 
for  that  purpose  in  connection  with  other  evidence  in  the  case. 
However,  if  the  accused  is  convicted  by  confession  in  open 
court,  the  court  will  examine  the  Avitnesses,  determine  the 
degree    of    the    crime,    and    pronounce   sentence    accordingly. 

Ilotelling  V.   State,   3   C.   C.   630,   2   C.   D.   36G. 
Blackburn  v.   State,   23   0.   S.   146. 
Section  13692,  General  Code. 

(c)  A  confession  before  the  coroner  is  not  a  judicial  con- 
fession ;  and  it  is  necessary  that  there  should  be  other  proof 
of  the  corpus  delicti.  But  it  is  not  necessary  that  the  agency 
of  the  accused  should  be  proved  by  other  evidence  which  alone 
W'Ould  prove  the  guilt  of  the  accused  beyond  a  reasonable 
doubt. 

State  V.  Leuth,  5  C.  C.  94,  3  C.  D.  48. 

(d)  AYhen  the  proof  of  death  is  direct  and  positive,  and 
the  circumstances  shown  are  of  such  force  when  taken  to- 
gether as  to  leave  no  room  for  doubt  that  the  deceased  was 
murdered,  any  extrajudicial  confession  by  the  prisoner,  if 
otherwise  competent,  may  be  admitted  in  evidence  for  the  pur- 
pose of  establishing  his  connection  with  the  crime. 

State  V.  Kiiapp,  70  0.  S.  380. 

(e)  If  the  facts  extrinsically  proved  by  the  state  corrobo- 
rate the  confession,  then  full,  direct  and  positive  evidence  of 
the  corpus  delicti  is  not  indispensable  to  admit  the  confession 
in  evidence ;  and  if  such  extrinsic  corroboi'ative  facts,  when 
considered  with  the  confession,  persuade  the  jury  beyond  a 

metzlek's  trial  ev. — 9 


§193  METZLER'S    OHIO    TRIAL    EVIDENCE  258 

reasonable  doubt  of  the  prisoner's  guilt  as  charged,  such  evi- 
dence will  support  a  verdict  of  guilty, 

State  V.  Knapp,  70  0.  S.  380. 

State  V.  Morris,   5   N.   P.   232,   7   0.   D.   84. 

(f)  A  confession  of  the  accused  that  he  was  guilty  of  the 
arson  charged  is  competent  when  it  is  shown  that  the  building 
was,  in  fact,  burned  without  showing  that  the  fire  was  of  in- 
cendiary origin. 

Berman   v.   State,    16   C.   C.    (N.S.)    106. 

Cf.  State  V.  Maranda,  94  0.  S.  364. 


CHAPTER  XV. 
RES  GESTAE. 

194.  General  rule. 
19j.  Illustrations, 
l&t).  Verbal  acts. 

197.  Time   of   declaration. 

198.  In   rape  cases. 

199.  Expressions  of   pain. 

200.  Self-serving   declarations. 

201.  Admissions   of   agents. 

202.  Declarations  of  instructed  agent. 

203.  Declarations  of  employes. 

204.  Declarations  of  carrier's  agents. 
:^0.5.  Declarations  of  spouse. 

20G.  Declarations  of  legal  representatives. 

207.  Declarations  of  corporate  agents. 

208.  Declarations  of  public  agents. 

209.  Declarations  of  partners. 

210.  Declarations  of  grantors. 

211.  Declarations  of  owners. 

212.  Declarations  of  joint  parties. 

213.  Acts  of  conspirators — Examination. 

214.  Proof   of   acts — Principles. 

215.  Acts — In  homicide  cases. 

216.  Acts — In  crimes  affecting  property. 

217.  Acts — In  crimes  affecting  public. 

218.  Acts — Under    anti-trust   law. 

219.  Acts  not  within  conspiracy  rule. 

194.  GEK'ERAL  RULE. 

(a)  Every  fact  that  is  so  connected  Avith  a  fact  in  issue 
as  to  form  part  of  the  same  transaction  or  occurrence,  though 
not  in  issue,  is  admissible  in  evidence  if  it  tends  to  j)rove  or 
disprove  any  fact  in  issue;  and  this  is  the  nde,  even  though  it 
might  be  excluded  as  hearsay,  if  it  Averc  not  a  ])ai-t  of  the 
same  transaction  or  occurrence.  And  a  party  introducing  part 
of  a  transaction  Avill  not  be  heard  to  object  to  other  material 
facts  occurring  at  the  same  time. 

Pee   Rteplien's   Digest   of   Ev.,   Art.   3. 
Dodge   V.    Bank,    30   0.   S.    1. 
Cf.  Dock   Co.  V.    Trapnell,  23  C.  C.    (N.S.)    408. 
259 


§195  METZLER'S    OHIO    TRIAU    EVIDENCE  260 

105.  ILLUSTRATIONS. 

(a)  In  a  trial  for  murder,  it  is  competent  for  the  defend- 
ant to  prove  how  he  was  employed  at  the  time  he  met  with  the 
person  he  is  charged  to  have  killed,  and  what  was  his  conduct 
a  short  time  before  the  affray  which  resulted  in  the  killing. 
This  is  a  matter  of  importance,  for  if  the  killing  was  in  a 
sudden  quarrel,  he  could  not  be  convicted  of  murder. 

Stewart  v.  State,  19  Oli.  302. 

(b)  Where  defendant  on  trial  for  stealing  a  mare  claimed 
that  he  had  bought  it  from  a  previous  owner,  the  conversa- 
tion between  him  and  the  seller  at  the  time  of  the  transaction 
is  competent  as  part  of  the  res  gestae  in  proof  that  there  was 
such  sale. 

Leggett  V.  State,  15  Oh.  283. 

(c)  On  the  issue  whether  a  broker  who  had  sold  forged 
bonds  was  selling  for  himself  or  a  principal,  the  payment  of 
the  money  by  the  broker  to  the  principal  having  been  testified 
to,  and  the  absence  of  a  receipt  being  relied  on  by  plaintiff, 
evidence  is  admissible  that  the  receipt  of  the  broker  for  the 
bonds  was  taken  back  on  turning  over  the  proceeds,  instead 
of  taking  a  receipt  for  the  proceeds. 

Souther  v.  Stoeckle,  3  Bull.  575,  7  0.  D.  R.  511. 

(d)  In  an  action  by  a  person  who  was  struck  by  a  loco- 
motive at  a  railway  station,  the  condition  of  the  tracks  at  the 
time  of  the  accident,  whether  thronged  with  people  or  other- 
wise, is  a  material  circumstance ;  and  evidence  tending  to 
prove  its  condition  in  this  respect  is  competent.  It  has  a  bear- 
ing on  the  question  of  negligence. 

Eailway  v.  Herrick,  49  0.  S.  25. 

(e)  In  an  action  for  damages  on  account  of  the  striking 
of  the  decedent  by  a  locomotive  at  a  grade-crossing,  testimony 
is  competent  as  to  the  presence  of  a  side-track  with  cars 
standing  upon  it,  which  to  some  degree  obstructed  the  view  of 
the  decedent  as  he  approached  the  crossing ;  and  records  of 
the  railway  company  showing  the  presence  of  such  cars  is 
competent,  although  not  produced  by  the  party  who  made  the 
records. 

Railway  v.  Parker,  9  C.  C.    (KS.)   28,  19  C.  D.  1. 
See  Davider  v.  Railway,  20  C.  C.  (N.S.)   165. 


261  RES     GESTAE  §  196 

(f)  Where  railroad  men  attempt  to  construct  a  dispiitod 
crossing  and  thereby  injure  a  i)olieeman  who  was  placed  there 
to  prevent  it.  their  acts  immediately  after  tlie  injury,  such  as 
placing  a  car  so  as  to  obstruct  the  street,  are  a  ])art  of  the  res 
gestae. 

Railway  v.  Khito,  S  C.  C.   (N.S.)   409,  19  C.  T).  702. 

(g)  Where  a  bailee  of  money  without  reward  is  robbed 
and  immediately  gives  notice,  institutes  a  search,  commences 
a  prosecution  and  proceeds  to  a  conviction,  one  or  all  of  these 
circumstances  may  be  admitted  in  evidence  in  an  action 
against  him  for  the  amount,  just  as  it  would  be  proper  for 
the  plaintiff  to  show  that  at  the  time  of  the  alleged  robbery 
the  defendant  remained  silent,  and  instituted  neither  search 
nor  prosecution. 

Anderson  v.  Foresman,  Wright,  598. 

(h)  In  an  action  for  ejecting  the  plaintiff  from  a  street 
car,  evidence  by  the  defendant  is  competent  to  show  that  pas- 
sengers had  left  the  car  on  account  of  the  conduct  of  the 
plaintiff,  and  that  they  made  complaint  to  the  conductor:  and 
this  is  so,  whether  the  complaint  was  heard  bv  the  plaintiff 
or  not.  Such  evidence  is  a  part  of  the  res  gestae,  and  tends  to 
show  that  the  conductor  acted  justifiably  and  without  malice. 

United  Power  Co.  v.  Matheny,  81  O.  S.  204. 

(i)  Where  a  passenger  was  seeking  to  ride  on  a  transfer 
not  good  on  the  line,  his  failure  to  make  an  explanation  lie- 
fore  he  was  put  off  the  car  is  admissible  as  })art  of  the  i-es 
gestae,  as  bearing  upon  the  question  of  good  faith  in  accept- 
ing and  using  the  transfer  and  as  affecting  the  amount  of 
damages. 

Cleveland  City  Ry.  v.  Conner,  74  0.  S.  225. 

196.  VERBAL  ACTS. 

(a)  It  is  undoubtedly  true  as  a  general  rule  that  the  state- 
ments of  a  party  in  regard  to  the  subject-matter  of  his  own 
suit  are  inadmissible  unless  introduced  by  his  adversary:  but 
this  rule  is  necessarily  su])ject  to  many  exceptions.  For  wIk^m- 
ever  a  person  enters  into  land  in  order  to  take  advantage  if 


§196  METZLER'S  OHIO   TRIAL   EVIDENCE  262 

a  forfeiture,  to  foreclose  a  mortgage,  to  defeat  a  disseisin, 
or  the  like;  or  where  a  person  changes  his  residence,  or  is 
i!l)on  a  journey,  or  leaves  his  home,  or  returns,  or  remains 
abroad,  or  secretes  himself,  or  does  any  act  that  is  material 
to  be  understood,  his  declarations  made  at  the  time  and  ex- 
pressive of  its  character,  motive  or  object,  are  regarded  as 
verbal  acts,  indicating  a  present  purpose  and  intention  and 
are  therefore  admitted  in  evidence. 

Wetmore  v.  Mell,  1  0.  S.  26,  27. 

Insurance  Co.  v.  Cheever,  36  0.  S.  201,  208. 

(b)  In  an  action  for  breach  of  promise,  a  promise  of  mar- 
riage having  been  shown,  its  acceptance  may  be  proved  by  re- 
ceiving the  attentions,  procuring  bedding  and  preparing  for 
marriage,  and  contemporaneous  declarations  of  the  purpose  of 
such  acts  of  preparation  are  also  competent  to  explain  them. 
But  her  declarations  after  suit  brought  or  after  rupture  be- 
tween the  parties  are  not  admissible. 

Wetmore  v.  Mell,  1  0.  S.  26. 

(f.  Can-  V.  Dovlosky,  17  C.  C.   (N.S.)    300. 

(c)  But  declarations  of  the  plaintiff  made  to  strangers  in 
regard  to  the  engagement  are  not  competent  when  they  are 
not  explanatory  of  competent  facts,  for  that  is  merely  manu- 
facturing evidence. 

Stribley  v.  Welz,  4  C.  D.  520,  8  C.  C.  571. 

(d)  Where  a  person  injured  at  a  railway  station  left  home 
with  a  railway  ticket  to  a  certain  place,  his  declaration  on 
leaving  home  that  he  intended  to  go  to  that  place  is  com- 
petent to  show  that  he  was  at  the  station  for  the  purpose  of 
becoming  a  passenger  on  one  of  the  trains  of  the  railway. 

Railway  v.  Herrick,  49  0.  S.  25. 

(e)  The  evidence  being  conflicting  as  to  whether  the  ac- 
cused or  his  brother  struck  the  fatal  bloAv  in  an  affray  in 
which  the  deceased  first  attacked  the  brother,  threats  of  the 
accused  which  may  have  referred  to  the  brother  made  to  a 
third  person  just  before  the  attack  are  part  of  the  res  gestae, 
though  not  heard  by  the  accused  or  his  brother. 

Dickson  v.  State,  39  O.  S.  73. 


263  RES    GESTAE  §  197 

(f)  A  party  in  a  boundary  suit  may  show  that  his  vendor 
pointed  out  the  boundaries  at  the  time  of  the  sale.  It  would 
be  a  part  of  the  res  gestae;  and  where  it  does  not  contradict 
the  written  contract,  there  is  no  objection  to  it. 

Walker  v.  Devlin,  2  0.  S.  503,  604. 

(g)  In  an  action  to  reach  a  fund  deposited  hy  the  debtor 
in  his  son's  name,  the  debtor  who  claims  that  he  acted  only  as 
agent  of  his  son  may  show  his  own  declarations  to  the  banker 
at  the  time  of  the  deposit  that  he  Avas  acting  as  agent  for  his 
son. 

Martin  v.  Elden.  32  0.  S.  282,  2.S8. 

See  Williams  v.   Stearns.   5!)  0.   S.  28,   36. 

(h)  In  an  action  for  damages  caused  hy  a  conspiracy  of 
defendants  to  injuie  plaintiff's  business  hy  frightening  away 
his  customers,  the  declarations  of  reasons  by  customers  for 
withdraAA'ing  their  custom  made  at  the  time,  are  competent  as 
part  of  the  res  gestae. 

Moores  v.   Bricklayer's  Union,  23   Bull.  48,   10  0.  D.   R.   665. 

1S7.  TIME  OF  DECLARATION. 

(a)  The  doctrine  of  res  gestae  as  applied  to  exclamations, 
should  have  its  limits  determined,  not  by  the  strict  meaning 
of  the  word  "contemporaneous,"  but  rather  by  the  causal, 
logical  or  psychological  relation  of  such  exclamations  with  the 
primary  facts  in  controversy.  This  doctrine  applies  equally 
to  participants,  by-standers  and  persons  incompetent  to  be 
witnesses. 

State  V.  Lasecki,  90  0.   S.   10. 

(b)  The  exclamation  of  a  boy  four  years  of  age  that  "the 
bums  killed  pa  with  a  broomstick,''  Avhich  was  made  from  ten 
to  thirty  seconds  after  a  fatal  assault  on  his  fatlier  in  the 
boy's  presence,  is  comjictent  evidence  as  explanatory  and 
illustrative  of  the  manner  and  means  by  which  the  father  was 
assaulted. 

state  V.  Lasecki,  00  0.  S.  10. 

(c)  Exclamations  do  not  become  a  part  of  the  res  gestae 
Tiiiless   they   were    involuntary    and    involved    no    intellectual 


§198  METZLER'S    OHIO    TRIAL    EVIDENCE  264 

processes.     An  exclamation  by  the  decedent  an  instant  before 
the  accident  is  not  competent  -where  the  same  matter  would 
not  be  admissible  were  the  party  still  living  and  on  the  stand. 
Interurban  Co.  v.  Haines,  8  C.  C.   (X.S.)   77,  IS  C.  D.  443. 

(d)  It  is  not  competent  for  the  accused  to  prove  declara- 
tions made  by  himself  immediately  after  the  homicide  in  re- 
gard to  the  homicide  and  the  circumstances  attending  it. 
Such  declarations  form  no  part  of  the  res  gestae,  but  are  sim- 
ply a  narrative  of  a  past  transaction. 

Forrest  v.  State,  21  0.  S.  641. 

(e)  In  an  action  against  a  railway  company  for  injury  to 
a  passenger  who  was  thrown  into  a  ditch  by  a  jerk  of  the  car 
while  alighting,  it  is  error  to  prove  his  declarations  as  to  how 
it  happened,  made  while  being  helped  out  of  the  ditch,  be- 
cause they  are  no  part  of  the  res  gestae. 

Railway  v.  Mara,  26  0.  S.  18,5. 

(f)  Declarations  of  a  subscribing  witness  to  a  will  made 
immediately  after  leaving  the  room  in  which  the  will  was 
executed,  can  not  be  admitted  on  the  theory  that  they  are 
part  of  the  res  gestae ;  and  the  subscribing  witness  having 
died  since  the  execution  of  the  will,  testimony  as  to  the  state- 
ments that  he  then  made  is  incompetent. 

Baird  v.  Detrick,  8  O.  App.  inS,  28  0.  C.  A.  257. 

(g)  Declarations  made  by  the  victim  of  a  homicide  some 
time  after  the  assault  which  caused  his  death,  at  a  house  sixty 
rods  from  the  scene  of  the  crime,  narrating  certain  facts  in 
regard  to  the  assault,  are  not  part  of  the  res  gestae,  and  are 
not  competent  evidence  upon  the  trial  of  the  assailants. 

Wade  V.  State,  2  C.  C.    (N.S.)    189,   15  C.  D.  279. 

198.  IN  RAPE  CASES. 

(a)  In  a  prosecution  for  rape  or  for  assault  with  intent  to 
commit  rape,  the  substance  of  what  the  prosecutrix  said  or 
the  declarations  made  by  her  immediately  after  the  offense 
may  be  given  in  evidence  in  the  first  instance  to  corroborate 


2G5  RES     GESTAE  §198 

her  testimony.     But  such   evidence  is  not  admissible  in  chief 
to  prove  the  commission  of  the  offense. 

JlcCombs  V.  state,  8  O.  S.  643. 

Dunn   V.   State,   45   0.   S.   24!). 

Allen  V.   State,  26  C.  C.   (X.S.)    254. 

(b)  When  the  testimony  of  the  prosecutrix  charges  the 
crime  upon  the  defendant,  it  is  competent  to  show  that  in 
and  by  her  declarations  made  immediately  after  the  offense 
she  charged  the  crime  upon  the  defendant. 

Burt  V.  State,  23  0.  S.  304. 

(c)  The  declarations  made  by  the  injured  person  in  refer- 
ence to  the  offense  several  daj^s  after  its  ])erpetration  are  not 
admissible  unless  the  delay  in  making  such  declarations  is 
first  explained  and  excused  by  proof  of  sufficient  cause  there- 
for. 

Dunn  V.  State,  45  0.  S.  240. 
Allen  V.  State,  26  C.  C.   (N.S.)   254. 

(d)  Where  a  child  of  ten  -was  abused  -with  her  consent 
and  on  the  same  day  and  next  day  made  complaint  to  her 
mother,  and  ten  days  later  made  a  detailed  statement  to  the 
mother  in  response  to  inquiries,  the  latter  statement  is  not 
admissible  when  no  sufficient  cause  for  the  delay  was  shown, 

Dunn  V.  State,  45  0.  S.  249. 

(e)  Where  a  witness  testifies  that  the  female  made  com- 
plaint in  his  presence  soon  after  the  act,  it  is  error  to  reject 
a  cross-examination  that  before  the  complaint  the  prosecutrix 
had  been  informed  that  the  sexual  act  had  been  witnessed  by 
others. 

McFarland  v.  State,  24  0.   S.  320. 

(f)  But  Avhere  the  prosecutrix  is  incompetent  to  be  sworn 
as  a  witness  by  reason  of  being  an  imbecile,  her  declarations 
made  shortly  after  the  assault  are  incompetent  to  prove  the 
commission  of  the  offense.  And  error  in  admitting  such  dec- 
larations can  not  be  cured  by  a  charge  that  they  were  admit- 
ted only  to  show  how  she  was  conducting  herself  when  her 
mother  found  her,  if  the  other  evidence  is  not  sufficient  to 
convict. 

Hornbeck  v.  State,  35  0.  S.  '^TT. 


§199  METZLER'S   OHIO   TRIAL    EVIDENCE  266 

(g)  In  a  trial  of  accused  for  sodomy,  the  declarations  of 
the  person  assaulted  are  not  admissible  for  any  purpose.  But 
even  if  admissible  as  in  rape,  it  is  error  to  admit  them  when 
the  assaulted  person  was  not  examined  as  a  witness. 

Foster  v.  State,  1  C.  D.  261,  1  C.  C.  467. 

199.  EXPRESSIONS  OF  PAIN. 

(a)  When  a  party  has  been  injured,  a  physician  called  for 
treatment  may  testify  what  the  patient  said  to  him  about  his 
condition.  It  is  to  be  presumed  in  such  case  that  he  states  the 
truth,  as  it  is  to  his  interest  that  he  should  do  so  and  not  mis- 
lead the  physician  by  false  statements  as  to  his  condition. 

Pennsylvania  Co.  v.  Files,  65  0.  S.  403,  406. 

(b)  Although  called  to  treat  plaintiff,  the  physician  can 
not  be  permitted  to  testify  in  plaintiff's  behalf  as  to  what  he 
said  was  the  cause  of  the  injury,  and  that  he  attributed  his 
T-ondition  to  such  injury. 

Railway  v.  Yokes,  5  C.  D.  .599,   12  C.  C.  499. 

(c)  But  in  an  action  on  an  accident  policy,  it  was  held 
that  statements  of  deceased  to  his  physician  to  enable  him  to 
prescribe,  are  competent  to  prove  the  cause  of  death,  although 
the  symptoms  could  have  been  produced  by  disease. 

Dabbert  v.  Insurance  Co.,  2  C.  S.  C.  R.  9S. 

(d)  Where  a  party  calls  upon  a  physician  for  the  purpose 
of  enabling  the  physician  to  testify  as  an  expert  in  a  pending 
or  proposed  suit,  statements  made  by  the  party  in  regard  to 
his  condition  are  not  admissible;  and  for  a  stronger  reason, 
like  statements  made  to  third  persons,  not  physicians,  are  in- 
competent. 

Pennsylvania  Co.  v.  Files,  65  0.  S.  40,3. 
Railway  v.  Yokes,  12  C.  C.  499,  5  C.  D.  599,  00.3. 

(e)  Therefore,  statements  by  one  who  had  been  injured 
some  time  before,  as  to  the  effect  of  the  injury  and  the  suffer- 
ing caused  thereby,  can  not  be  given  in  evidence  by  third 
persons  or  by  a  physician  not  in  attendance  on  the  case,  in  an 
action  in  which  damages  are  sought  to  be  recovered  for  the 
injury. 

Cincinnati  v.  Osborne,  27  C.  D.  108,  24  C.  C.   (:Sr.R.)   463. 
Railway  v.  Yokes,  5  C.  D.  599,  12  C.  C.  499. 


267  RES    GESTAE  §200 

(f)  Testimony  of  non-experts  giving  the  declarations  of 
the  plaintiff  as  to  his  condition,  are  considered  competent 
when  they  are  exclamations,  screams  or  groans,  which  are  the 
natural  accompaniments  of  great  bodily  suffering.  The  rule 
excludes  all  statements  made  in  answer  to  questions  or  by  way 
of  imparting  information. 

Eailwav  v.  Yokes,  12  C.  C.  499,  5  C.  D.  599,  606. 
Cf.  Railway  v.  Roebuck,  22  C.  C.  99,   12  C.  D.  262. 

(g)  Defendant  having  offered  evidence  that  plaintiff's 
physical  condition  was  not  due  to  the  accident  but  to  change 
of  life,  and  that  she  had  made  no  complaint  at  the  time  of  the 
accident,  plaintiff  can  not  show  in  rebuttal  that  on  other  occa- 
sions she  had  made  complaints  of  suffering  and  pain. 

Railway  v.  Yokes,  12  C.  C.  499,  5  C.  D.  599. 

200.  SELF-SERVING  DECLARATIONS. 

(a)  The  general  rule  is  that  one  person  is  not  to  be  affected 
by  the  unauthorized  declarations  of  another.  Where  there  is 
neither  joint  interest  nor  combination,  where  each  claims  inde- 
pendently of  the  other,  the  words  of  one,  no  more  than  his 
acts,  can  bind  the  other.    The  declarations  are  self-serving. 

See  Thompson  v.  Thompson,  13  0.  S.  356,  361. 

(b)  Testimony  as  to  a  conversation  by  telephone  between 
the  prosecuting  witness  and  his  agent,  in  the  absence  of  the 
accused,  and  without  his  knowledge,  is  wholly  incompetent. 

Limerick  v.  State,  14  C.  C.  207,  7  C.  D.  664. 

(c)  The  defense  can  not  prove  that  two  accomplices  of  the 
prisoner  conferred  while  the  prisoner  was  supposed  to  be 
asleep  and  stated  that  they  could  put  the  crime  on  him,  be- 
cause the  state  can  not  be  bound  by  such  statements.  But  the 
prisoner  could  examine  the  accomplices  upon  such  statement 
and,  if  denied,  then  prove  it  in  impeachment. 

Blair  v.  State,  5  C.  C.  496,  3  C.  D.  242. 

(d)  In  an  action  by  a  wife  for  the  loss  of  the  society  and 
companionship  of  her  husband,  the  declarations  of  the  hus- 
band made  in  the  absence  of  the  defendant,  as  to  the  cause  of 
his  abandoning  or  putting  his  wife  away,  are  not  admissible. 

Westlake  v.  Westlake,  34  0.  S.  621. 


§201  METZLER'S   OHIO   TRIAL    EVIDENCE  268 

(e)  In  an  action  by  a  married  woman  suing  for  assault 
and  battery  upon  her,  she  can  not  testify  to  the  instructions 
and  advice  her  husband  gave  her  in  the  absence  of  the  ac- 
cused as  to  how  she  should  act  if  assaulted. 

Stevenson  v.  Morris,  37  O.  S.  10. 

(f)  The  accused  can  not  testify  to  a  conversation  between 
himself  and  wife  many  months  before  the  homicide,  as  to  a 
visit  of  the  deceased  to  his  home  in  his  absence,  and  what  then 
took  place. 

Thurman  v.  State,  2  C.  D.  466,  4  C.  C.  141,  144. 

(g)  The  fact  that  the  defendant  was  seen  and  recognized 
at  a  certain  time  and  place  can  not  be  proved  by  showing  that 
the  party  making  such  recognition  shortly  thereafter  stated 
to  the  witness  who  the  person  was.  Nor  is  such  evidence  com- 
petent in  corroboration  of  a  Avitness  testifying  to  having  made 
such  recognition. 

Rose  V.  State,  7  C.  D.  226,  13  C.  C.  342. 

(h)  In  a  prosecution  under  the  Be^  law  of  a  physician  as 
an  aider  and  abettor  in  the  sale  of  intoxicating  liquor  in  a 
dry  town,  in  that  he  gave  prescriptions  to  parties  for  liquor 
which  Avas  purchased  at  the  drug  store,  a  declaration  by  the 
purchaser  to  the  druggist  as  to  what  he  wanted  the  liquor  for, 
is  incompetent  when  made  in  the  absence  of  the  physician. 

Garrison  v.  State,  4  N.  P.   (N.S.)   277,  17  0.  D.   150. 

201.  ADMISSIONS  OF  AGENTS. 

(a)  The  universal  rule  is  that  the  declarations  of  an  agent 
are  only  admissible  against  the  principal  when  made  in  per- 
forming the  business  of  the  principal,  or  professing  to  act  for 
the  principal  in  the  doing  of  some  act  wnthin  the  apparent 
scope  cf  his  authority.  And  they  can  only  be  used  in  favor 
of  an  innocent  bona  fide  party  or  purchaser. 

Worthington  v.  Railway,  19  C.  D.  321,  0  C.  C.    (N.S.)    433.  437. 
Wilmot  V.  Lyon,  7  C.  D.  394,  11  C.  C.  238. 

(b)  It  is  because  the  declaration  nf  an  agent  is  a  verbal 
act  and  part  of  the  res  gestae,  that  it  is  admissible;  and  when- 
ever what  he  did  is  admitted  in  evidence,  then  it  is  competent 
to  prove  what  he  said  about  the  act  while  he  was  doing  it. 

Worthington  v.  Railway,  19  C.  D.  321,  9  C.  C.    (N.S.)    433,  437. 


269  RES  GESTAE  §  202 

(c)  Upon  the  trial  of  an  issue  as  to  agency,  the  declara- 
tions of  the  alleged  agent  in  the  absence  of  the  defendant  are 
not  competent  to  prove  the  agency :  but  they  are  competent  to 
show  that  the  alleged  agent  assumed  to  act  as  such.  An 
agency  may  be  proved  by  showing  that  the  principal  has  led 
the  public  to  believe  that  it  exists  by  a  continued  course  of 
business  transactions. 

Williams  v.   Stearns,  59   0.  S.  28,  36. 

Pullman  Co.  v.  Willett,  7  C.  C.   (X.S.)    173,  17  C.  D.  649. 

Lapliam  v.  Spink,  24  C.  C.    (N.S.)    348. 

(d)  But  on  the  trial  of  issues  involving  the  authority  of 
an  alleged  agent  to  make  purchases  on  account  of  the  defend- 
ant, evidence  that  the  defendant  became  guarantor  to  others 
than  the  plaintiff  for  the  payment  of  the  price  of  similar 
articles  purchased  by  the  alleged  agent  upon  his  own  account 
is  not  competent  for  the  purpose  of  showing  either  a  previous 
authority  or  a  ratification. 

Williams  v.  Stearns,  59  0.  S.  28. 

202.  DECLARATIONS  OF  INSTRUCTED  AGENT. 

(a)  "Where  an  agent  acting  under  instructions  from  his 
principal  answers  orally  and  under  oath  a  garnishee  process 
served  on  such  principal,  his  statements  so  made  may  be  given 
in  evidence  against  the  principal  in  another  action  involving 
the  property  about  which  the  agent  had  so- testified,  and  about 
which  he  alone  had  knowledge. 

Bcrdan  v.  Bour  Co.,  10  C.  C.  127,  6  C.  D.  154. 

(b)  The  statement  of  a  third  person  to  whom  a  party  has 

referred  for  information  in  regard  to  a  matter  is  competent  as 

an  admission  of  such  party.     So  where  a  debtor  refers  the 

creditor  to  a  third  person  for  information  in  regard  to  a  claim, 

what  the  third  person  says  in  regard  thereto,  is  admissible 

against  the  debtor. 

Jennings  v.  Havnes,  1   C.  C.  22,  1   C.  D.   13. 
Cf.  Myers  v.  Standart.   11  O.  S.  29. 

(c)  Where  the  buyer  complains  of  the  quality  of  the  goods 
delivered,  and  the  sellers  send  out  a  man  to  inspect  at  their 
own  expense,  he  is  their  agent,  and  his  declarations  while  in- 
specting are  res  gestae  and  admissible. 

Tillyer  v.  Glass  Co.,  7  C.  D.  209,   13  C.  C.  99. 


§204  METZLER'S   OHIO   TRIAL    EVIDENCE  270 

(d)  "Where  an  agent  is  in  possession  of  goods  which  are 
taken  from  him  in  replevin,  and  he  is  defending  such  suit  in 
his  own  name,  his  admissions  as  to  facts  material  to  the  case 
are  compet'^nt  against  him,  although  they  were  not  within  his 
agency. 

Wilmot  V.  Lyon,  7  C.  D.  394,  11  C.  C.  238. 

203.  DECLARATIONS  OF  EMPLOYES. 

(a)  The  statements  of  mere  employes  who  are  charged 
with  specific  duties  can  not  be  offered  in  evidence  to  bind  the 
defendant,  when  it  appears  that  such  employes  had  no  such 
control  or  authority  as  would  make  their  admissions  compe- 
tent. 

Oil  Co.  V.  McCrory,  14  C.  C.  304,  7  C.  D.  344. 
See  also  Krause  v.  Morgan,  53  0.  S.  26,  31. 
Railway  v.  McLean,  1  C.  C.  112,  1  C.  D.  67,  69. 

(b)  In  an  action  for  damages  under  the  civil  rights  act, 
where  there  is  nothing  in  the  record  to  show  that  the  door- 
keeper of  the  defendant  was  entrusted  with  any  authority  be- 
yond the  admission  of  persons  with  tickets,  explanations  of 
the  conduct  of  any  other  employe  of  the  defendant,  or  any 
other  feature  of  its  business,  is  not  within  the  sphere  of  the 
doorkeeper's  agency. 

Lyons  v.  Eink  Co.,  18  C.  C.   (N.S.)   202. 

(c)  In  an  action  against  the  owner  of  a  fractious  horse 
for  damages,  evidence  of  a  third  person  as  to  what  the  driver 
or  an  employe  of  the  defendant  said  about  the  bad  character 
of  the  horse  in  defendant's  absence,  is  incompetent,  as  such  a 
declaration  is  not  a  part  of  the  res  gestae. 

Gobrecht  v.  Sicking,  9  C.  D.  851,   18  C.  C.  881. 
Mills  V.  Grasselli,  4  O.  D.  R.   161,   1   C.  L.   Rep.   82. 

204.  DECLARATIONS  OF  CARRIER'S  AGENTS. 

(a)  "Where  a  passenger  presented  his  check  and  demanded 
his  baggage  of  an  agent  in  charge  of  the  baggage-room  soon 
after  arrival  at  his  destination,  who  after  thorpugh  search, 
told  the  passenger  that  he  had  searched  for  the  baggage  and 


271  RES    GESTAE  §  205 

it  could  not  be  found,  it  was  held,  in  an  action  against  the 
can-ierfor  loss  of  the  baggage,  that  these  acts  and  statements 
of  the  agent  were  admissible. 
T^ailroad  v.  Campbell,  36  0.  S.  647. 

(b)  Statements  of  a  steamboat  captain  accompanying  his 
acts  and  explanatory  of  them  made  during  the  discharge  of 
his  duty  while  his  boat  was  sinking  and  he  was  seeking  aid, 
which  statements  related  to  the  condition  of  the  boat,  are  res 
gestae  and  competent. 

Insurance  Co.  v.  Tobin,  32  0.  S.  77. 

(c)  But  where  a  railroad  company  was  sued  for  the 
wrongful  death  of  an  employe,  evidence  of  an  admission  by 
the  conductor  of  the  train  made  after  the  accident,  to  the 
effect  that  he  did  not  know  how  he  came  to  leave  the  SAvitch 
open,  is  not  competent. 

Railway  v.  Collins,  10  C.  C.   (N.S.)   486,  20  C.  D.  110. 

(d)  What  a  motorman  said  immediately  after  the  accident 
in  answer  to  questions  by  witnesses  of  the  accident  as  to  why 
he  did  not  stop  the  car,  is  not  a  part  of  the  res  gestae,  and  not 
admissible  in  evidence. 

Traction  Co.  v.  Jamison,  13  C.  C.   (N.S.)    110,  22  C.  D.  336. 

205.  DECLARATIONS  OF  SPOUSE. 

(a)  Where  a  wife  is  employed  as  the  agent  of  her  hus- 
band, her  declarations  in  executing  the  agency  are  a  part  of 
the  res  gestae  and  admissible.  But  they  are  not  admissible  as 
to  matters  in  which  she  is  not  his  agent,  unless  made  in  his 
presence. 

Thomas  v.  TTarfjrave,  Wright  595. 

Cf.  Shutter  v.  Williams,  1  W.  L.  J.  310,  1  O.  D.  Tt.  47. 

(b)  Where  a  person  insured  in  a  beneficial  order  has  the 

right,   under   the   constitution    of   such    order,    to   change    the 

name  of  his  beneficiary  under  his  policy  at  any  time,  the  policy 

remains  part  of  his  estate;  and  any  admissions  he  may  make 

affecting  the  policy  may  be  offered  in  evidence  against  the 

beneficiary  in  an  action  upon  the  policy. 

Foxhovor  V.  Eed   Cross,   14  C.  D.  56,  2  C.  C.    (X.R.)    304. 
Cf.  Daley  v.  Brotherhood,  7  X.  P.    (N.S.)    238,  1!)  O.  D.  60. 


§207  METZLER'S   OHIO    TRIAL    EVIDENCE  272 

(c)  But  where  insurance  on  a  man's  life  is  for  the  sole 
use  of  his  Mife,  his  declarations  in  her  absence  either  before  or 
after  the  date  of  the  contract,  showing  that  the  statements  in 
his  application  were  false,  can  not  affect  any  one  but  the 
declarant  himself  and  are  not  admissible  against  the  wife. 

Insurance  Co.  v.  Applegate,  7   0.   S.  202. 
Insurance  Co.  v.  Cheever,  36  0.  S.  201. 

(d)  On  a  trial  for  rape  or  for  assault  with  intent  to  com- 
mit a  rape,  the  acts  and  declarations  of  the  husband  of  the 
woman  on  whom  the  offense  is  alleged  to  have  been  commit- 
ted are  not  admissible  to  discredit  the  wife,  who  was  ex- 
amined as  a  witness. 

:\rcCombs  V.  state,  8  0.  S.  643. 

2C6.  DECLARATIONS  OF  LEGAL  REPRESENTATIVES. 

(a)  Where  a  receiver  makes  an  admission  against  the  in- 
terest of  the  estate  in  his  custody,  while  acting  in  the  course 
and  within  the  scope  of  his  official  duty,  it  is  binding  upon  the 
estate  and  its  owner. 

Abrazonine  Co.  v.  Ceramic  Co.,  17  C.  C.   (X.f!.)   200. 

(b)  The  inventory  of  an  estate  filed  in  the  probate  court 
is  in  the  nature  of  an  admission,  and  is  competent  evidence  to 
show  omissions  in  the  tax  returns  of  the  deceased  or  those 
made  by  the  executors. 

Gager  v.  Pront,  4=1  0.  S.  89. 

Erie  Co.  v.  Walker,  22   Bull.   106,   10  0.  D.  R.  558. 

(c)  But  admissions  of  an  administrator  respecting  a  claim 
when  not  in  the  act  of  accepting  or  rejecting  the  claim,  but 
when  in  conversation  with  others  than  the  claimant,  are  not 
admissible  in  evidence  in  a  suit  brought  to  trial  after  the  per- 
son making  the  admissions  had  ceased  to  be  administrator. 

Hueston  v.  Hueston,  2  0.  S.  488. 

Cf.  Anderson  v.  Realty  Co.,  19  C.  D.  267,  9  C.  C.   (N.S.)   473,  406. 

207.  DECLARATIONS  OF  CORPORATE  AGENTS. 

(a)  The  admissions  or  conversations  of  the  directors  or 
stockholders  of  a  corporation  when  engaged  in  the  precise 
business  intrusted  to  them  are  admissible.     Even  the  admis- 


273  RES     GESTAE  §  207 

sions  of  the  president  of  a  corporation  are  not  competent  un- 
less tliey  are  made  "while  he  is  engaged  in  the  business  of  the 
corporation. 

Loomis  V.  Bank,   1   Disnoy  2S5. 

Hogg  V.  Zanesville  Mfg.  Co.,  Wright  139. 

Turni)ike  Co.  v.  Cincinnati,  10  C.  D.  28:^  10  C.  C.  607. 

(b)  Admissions  made  by  an  officer  of  a  corporation  after 

a  transaction,  to  one  not  connected  Avith  the  transaction,  -when 

the  corporation  is  not  called  upon  to  say  something,  Avill  not 

bind  the  corporation.     So  a  letter  written  by  the  maiuiger  of 

a  corporation  to  a  third  person  recommending  an  article  Avhich 

his  corporation  had  purchased,  is  not  admissible  in  an  action 

against  his  corporation  for  the  value  of  such  article  to  show 

that  it  was  satisfactory.  • 

Lime  Co.  v.  Smith,  11  C.  C.  213,  5  C   D.  70. 
McMylcr  v.  Beckman  Co.,   17   C.  C.    (X.S.)    32. 

(c)  Evidence  that  the  agent  of  a  corporation  stated  that 
it  would  not  perform  a  contract  does  not  bind  the  corpora- 
tion ;  and  it  is  not  competent  until  it  is  shown  that  the  agent 
had  authority  to  make  it.  And  if  the  statement  is  in  evidence, 
the  defense  may  show  that  the  agent  had  no  authority  to 
make  it. 

Bradford  Bolting  Co.  v.  Gibson,  68  0.   S.  442. 
r.iclimonJ  V.  Oil  Co.,  8  X.  B.  22,  8  0.  D.  583. 

(d)  A  subordinate  lodge  is  not  such  an  agent  of  the 
supreme  council  as  to  make  a  paper  prepared  and  approved 
by  such  branch  after  the  death  of  a  member,  giving  a  state- 
ment of  the  facts  in  the  case,  competent  evidence  against  the 
supreme  council  as  an  admission  made  by  its  agent. 

Cat'.iolic  Knights  v.  Connema,  3  C.  C.  130,  2  C.  D.  74. 

(c)  And  where  the  transfer  agent  of  a  consolidated  com- 
pany, to  secure  a  personal  loan  for  himself  or  interests  which 
he  represents,  transfers  stock  in  one  of  the  constituent  com- 
panies and  promises  to  exchange  such  shares  for  shares  in  the 
consolidated  corporation,  such  promise  is  not  admissible 
against  the  consolidated  corporation  in  an  action  to  compel 
such  exchange. 

Worthington  v.  Eailway,  9  C.  C.   (N.R.)   4.33,  10  C.  D.  321. 


§208  METZLER'S    OHIO    TRIAL    EVIDENCE  274 

2C8.  DECLARATIONS  OF  PUBLIC  AGENTS. 

(a)  The  declarations  of  a  state  canal  engineer  made  after 
a  contract  has  been  entered  into  and  in  respect  thereto,  weie 
held  not  comjietent ;  if  such  an  official  has  knowledge  of  any 
fact  in  issue,  he  Avonld  be  a  competent  witness  and  should  be 
sworn  as  a  witness.  A  party  neglecting  to  call  a  witness 
should  not  be  permitted  to  give  evidence  of  what  he  has  told 
others. 

State  V.  Perry,  Wright  662. 

(b)  When  a  person  was  unable  to  ascertain  from  the  plans 
and  profiles  in  the  city  engineer's  office  as  to  the  proposed 
change  of  grade  in  front  of  his  property,  and  the  engineer 
assured  him  that  it  would  be  but  two  feet,  and  he  filed  no 
claim  for  damages,  such  declarations  were  held  admissible  in 
his  action  against  the  city  for  a  greater  change  of  grade. 

Yonngstown  v.  Moore,  30  O.  S.   1.33. 

(c)  In  an  action  for  the  death  of  a  person  occasioned  by 
the  negligence  of  an  agent  of  a  city,  the  declarations  of  the 
agent  made  at  a  subsequent  time  are  not  competent  for  the 
purpose  of  showing  knowledge  on  the  part  of  the  city  officials 
of  the  dangerous  condition  of  the  work  the  deceased  was 
doing  at  the  time  of  the  accident. 

Circleville  v.  Tlirone.  1   C.  C  3n0.   1    C.  T).  200. 
See  Root  v.  WoiiroeviUe.    16   C.  (  .  617,  4   C.  D.  53. 

(d)  A  rule  of  the  police  department  which  requires  a 
policeman  to  note  defects  in  the  streets  or  sidewalks  and  to 
remove  them  when  practicable,  and  in  case  of  a  complaint  by 
any  citizen,  to  report  the  same,  is  irrelevant  and  incompetent 
as  evidence  to  charge  the  municipal  corporation  with  notice  of 
a  defect  in  the  street  or  sidewalk,  although  it  is  shown  in  con- 
nection therewith  that  a  policeman  had  knowledge  of  such 
defect,  unless  it  is  shown  that  the  ])o]ice  de]iartment  has  been 
regularly  and  legally  made  the  agent  of  the  city  for  the 
purpose. 

Cleveland  v.  Payne.  72  O.  S.  347. 

(e)  In  fixing  damages  for  a  proposed  improvement,  if  fol- 
lowing the  plans  would  obstruct  a  culvert  and  thus  flood  cer- 


275  RES    GESTAE  §  209 

tain  land,  it  is  error  to  admit  evidence  of  members  of  the 
council  of  defendant  city  to  the  effect  that  they  did  not  intend 
to  do  so,  but  would  enlarge  the  culvert.  A  member  of  a 
board  will  not  be  allowed  to  testify  as  to  what  the  board  in- 
tends to  do ;  for  he  can  not  bind  the  board. 
Martin  v.  Bond  Hill,  4  C.  D.  591,  7  C.  C.  271. 

(f)  The  separate  admissions  of  members  of  a  school-board 
made  to  plaintiff  and  others  a  short  time  after  the  board  ad- 
journed, by  which  they  admitted  that  the  board  had  made  a 
contract  with  plaintiff  and  stated  its  terms,  are  not  a  part  of 
the  res  gestae  and  not  admissible  to  prove  the  contract. 

Dixon  V.  School  Dist.,  3  C.  C.  517,  2  C.  D.  298. 

209.   DECLARATIONS  OF  PARTNERS. 

(a)  Where  the  act  of  the  partner  is  within  the  scope  of 
the  partnership,  a  declaration  made  by  him  at  the  time  of  the 
transaction  is  competent  to  show  that  the  act  was  done  in 
behalf  of  the  partnership ;  and  if  credit  was  obtained  on  the 
faith  of  such  declaration,  the  falsity  of  the  representation  is 
not  material. 

Benninger  v.  Hess,  41  0.  S.  64. 

(b)  The  representations  of  the  ostensible  partners  made  at 
the  time  of  the  transaction  may  be  shown  to  prove  that 
money  was  borrowed  on  the  credit  of  the  firm;  and  upon  such 
proof  a  dormant  partner  may  be  held  for  the  debt. 

Fosdick  V.  Van  Horn,  40  O.  S.  459. 

(c)  The  declarations  of  one  of  the  partners  during  the 
existence  of  the  partnership  in  order  to  induce  a  party  to 
become  surety  for  the  firm,  or  surety  of  a  renewal  of  the  loan 
at  maturity,  if  acted  on  in  good  faith,  are  binding  upon  the 
partners. 

McKee  v.  Hamilton,  33  0.  S.  7. 

(d)  In  so  far  as  a  partner  after  dissolution  acts  within  the 
scope  of  his  limited  authority  of  doing  whatever  is  necessary 
to  collect  claims  due  the  partnership  and  paying  its  debts,  his 
admissions  are  admissible  as  evidence  to  charge  his  copartners. 

Feigley  v.  Whitakpr,  22  0.   R.   606. 


^210  METZLER'S    OHIO    TRIAL    EVIDENCE  276 

(e)  But  where  father  and  son  sell  their  individual  per- 
sonal property  by  auction  at  the  same  time,  this  does  not 
make  them  partners ;  and  the  acts  of  the  son  and  his  declara- 
tions to  the  purchaser,  unknown  to  the  father,  would  not  be 
binding  upon  the  father. 

Andrews  v.  Watson.   12  C.  D.  602. 

(f)  On  an  issue  denying  partnership,  the  declarations  of 

one  charged  with  being  a  partner  are  competent  against  him; 

but  such  declarations  made  when  the  other  alleged  partner  is 

not  present,  are  incompetent  to  charge  the  absent  party  with 

that  relation. 

Cowan  V.  Kinney,  33  0.  S.  422. 

Andrews  v.  Watson,  12  C.  D.  692. 

Rodgers  v.  Edmund,   12   C.   D.   291,  21   C.  C.  675. 

(g)  To  prove  the  existence  of  a  partnership  and  the  firm 
name,  it  is  competent  to  give  in  evidence,  besides  the  verbal 
admissions  or  ordinary  business  transactions  and  conduct  of 
the  parties,  testimony  showing  the  acts  of  one  of  the  parties 
under  the  solemnity  of  his  deed  in  the  firm  name,  and  relating 
to  the  partnership  business  foreign  to  the  particular  transac- 
tion or  contract  which  constitutes  the  foundation  of  the  action. 
But  evidence  of  the  common  report  of  the  neighborhood  not 
connected  with  the  acts  and  admissions  of  the  parties  sought 
to  be  charged  as  partners,  is  not  admissible  to  prove  the 
partnership. 

Crowell  V.  Bank,  3  0.  S.  406. 
Inglebright  v.   Hammond,    19   Oh.   337. 

(h)  While  it  is  the  general  rule  that  the  admissions  of  a 
party  to  a  third  person  to  the  effect  that  he  is  a  partner,  bind 
him  in  that  case  as  a  partner,  this  fact  would  not  be  conclu- 
sive as  between  the  alleged  partners,  where  plausible  reasons 
are  given  for  the  admissions. 

Neilsen  v.  Taylor,  16  C.  C.  (N.S.)   124. 

210.  DECLARATIONS  OF  GRANTORS. 

(a)     The  declarations  of  a  grantor  made  after  the  date  and 

supposed  delivery  of  the  deed  are  good  evidence  to  prove  the 

deKvery  when  offered  against  the  grantor  or  his  heir. 

Tipton  V.  Eoss,  10  Oh.  273. 

Dukes  V.  Spangler,  35  0.  S.  119,  124. 

Cf.  Williams  v.  Burnet,  Wright  53. 


277  RES    GESTAE  §  210 

(b)  If  there  is  evidence  of  the  existence  of  a  deed,  decla- 
rations of  the  deceased  grantor  that  he  had  made  such  a  deed 
are  admissible  against  his  heirs.  And  declarations  of  a  dece- 
dent to  third  persons  o.^"  the  terms  of  a  parol  contract  made  by 
him  to  convey  land,  though  to  be  carefully  scrutinized,  are 
admissible  against  his  heirs  and  representatives;  and  if  defin- 
ite enough,  they  may  authorize  the  trial-court  to  determine 
the  terms  of  the  contract. 

Allen  V.  Parish,  3  Oh.  107,  122. 
Sliahan  v.  Swan,  48  0.  S.  25. 

(c)  Where  plaintiff  seeks  to  establish  his  title  to  land  in 
dispute  through  a  deed  to  him  from  a  certain  person,  ne  is  in 
privity  of  estate  with  that  person;  and  the  grantor's  admis- 
sions made  before  the  conveyance  which  would  have  been  ad- 
missible against  him  had  he  been  plaintiff,  are  admissible 
against  the  plaintiff, 

Edgar  v.  ■Richardson,  33  0.  S.  581,  591. 

(d)  Declarations  of  grantors  tending  to  show  a  mistake  in 
their  deed,  are  competent  against  them  and  their  heirs.  In  an 
action  against  the  heirs  of  the  grantors  for  the  reformation  of 
the  acknowledgment  to  a  deed,  the  acts  and  declarations  of 
the  grantor's  wife  at  and  after  executing  the  deed  and  in  rela- 
tion thereto,  are  admissible. 

Smith  V.  Turpin.  20  O.  S.  478,  492. 
Kilbourn  v.  Fury,  26  0.  S.   153. 

(e)  But  declarations  of  a  party  made  before  the  com- 
mencement of  title  under  which  the  party  claims,  are  not  evi- 
dence;  and  this  applies  to  title  to  both  real  and  personal 
property. 

Wallace  v.  Miner,   6   Oh.   366. 

See  Roberts  v.  Briscoe,  1  C.  C.  577,  1   C.  D.  323. 

(f)  And  declarations  by  the  grantor  of  realty  made  after 
the  conveyance  and  in  the  absence  of  the  grantee,  are  not  ad- 
missible evidence  in  derogation  of  the  title  conveyed  in  the 
deed;  and  an  act  of  dedication  can  not  be  affected  by  the  sub- 
sequent declarations  of  the  dedicator. 

Williams  v.  Mears,  4  Gaz.  293.  2  Dis.  604. 
Cf.  Hedrick  v.  Gregg,  8  N.  P.  24,  10  0.  D.  462. 
Lebanon  v,  Warren  Co.,  9  Oh.  80. 


§211  METZLER'S  OHIO  TRIAL   EVIDENCE  278 

(g)  The  acts  and  admissions  of  a  grantor  respecting  a  dis- 
puted boundary  line  after  he  has  parted  with  his  title,  are  not 
admissible  against  his  grantee;  and  this  is  so  even  though  they 
relate  to  and  affect  lands  still  owned  by  grantor. 

Hills  V.  Ludwig,  46  0.  S.  373. 

(h)  Oral  declarations  of  a  donor  are  not  competent  where 
they  have  a  tendency  to  discredit  the  title  to  real  estate 
theretofore  conveyed.  His  declarations  are  not  admissible  to 
show  that  he  had  before  conveyance  donated  one-half  of  a 
party-wall  to  the  owner  of  the  adjoining  lot. 

Hall  V.  Geyer,  7  C.  D.  436,  14  C.  C.  229. 

(i)  An  offer  by  an  adverse  claimant  to  buy  the  land  held 
by  him,  during  and  within  the  period  of  twenty-one  years, 
will  not  be  sufficient  to  arrest  the  running  of  the  statute.  Nor 
will  an  acknowledgment  by  the  claimant,  within  that  time, 
that  the  title  is  in  another  or  that  the  claimant  does  not  own 
the  land,  have  that  effect. 

McAllister  v.  Hartzell,  60  0.  S.  69. 

See  Chambers  v.  Wilcox,  3  N.   P.   (N.S)   269,  15  0.  D.  629. 

(j)  The  remark  incidentally  made  by  one  who  had  fenced 
in  a  parcel  of  land  that  the  street  was  included  within  the 
fence,  does  not  amount  to  a  declaration  on  his  part  that  the 
right  of  the  public  is  superior  to  his  own  in  the  strip  once 
platted  as  a  street,  which  has  been  enclosed. 

Seese  v.  Maumee,  7  C.  C.   (N.S.)  497,  18  C.  D.  768. 

211.  DECLARATIONS  OF  OWNERS. 

(a)  Where  an  owmer  has  parted  with  his  title  to  personal 
property  and  given  title  to  another,  he  can  make  no  admis- 
sions that  will  bind  his  vendee.  And  declarations  of  a  mort- 
gagee of  chattels  after  he  has  assigned  his  interest  are  not 
evidence  against  his  assignee. 

Gates  V.  Storage  Co.,  22  C.  C.  724,  11  C.  D.  721. 

(b)  Declarations  by  a  partner  in  disparagement  of  the 
firm's  title  to  personal  property  can  not  be  shown  against  a 
prior  mortgagee  of  the  firm,  if  the  declarations  were  made  in 
the  absence  of  the  mortgagee. 

Voss  V.  Murray,  50  0.  S.  19. 


279  RES    GESTAE  §211 

(c)  And  a  creditor  of  an  alleged  fraudulent  vendor  of 
personalty  can  not  prove  against  the  purchaser,  for  the  pur- 
j^ose  of  impeaching  his  title,  the  acts  or  declarations  of  such 
vendor  made  after  the  sale  and  delivery  of  the  property. 

Coal  Co.  V.  Davenport,  37  0.  S.  194. 
Stitt  V.  Wilson,  Wright  505. 
Cf.  Gay  V.  Gay,  26  0.  S.  402. 

(d)  In  an  action  for  damages  by  the  personal  representa- 
tive of  a  deceased  person,  the  admissions  of  the  deceased  as  to 
the  manner  in  Avhich  the  accident  happened  or  as  to  his  condi- 
tion, tending  to  show  that  the  accident  was  not  the  cause  of 
death,  are  competent  and  admissible  in  evidence  against  such 
personal  representative. 

Bond  Hill  V.  Atkinson,  9  C.  D.  185,  16  C.  C.  470. 
Helnian  v.  Railway,  58  0.  S.  400. 

(e)  "Where  the  maker  of  a  note  Avhen  sued  upon  it  by  the 

administrator  of  the  payee,  sets  up  as  a  defense  that  the  note 

■was  surrendered  to  him  by  the  payee  as  a  gift,  declarations  of 

the  payee,  while  in  possession  of  the  note,  of  an  intention  to 

make  such  gift  may  be  given  in  evidence  by  the  defendant  as 

tending  to  explain  his  possession  of  the  note. 

Larimore  v.  Wells,  29  0.  S.  13. 
(  f.  Ritchy  V.  Martin,  Wright  441. 

(f)  In  an  action  by  the  administrator  to  recover  on  a  note 
given  by  a  son  to  his  mother,  on  which  he  paid  interest,  evi- 
dence as  to  declarations  made  by  the  mother  to  third  parties, 
to  the  effect  that  she  did  not  intend  the  money  should  be 
treated  as  a  loan  but  as  an  advancement,  are  admissions 
against  her  interest  and  are  admissible.  But  where  execu- 
tors sued  a  son  of  testator,  a  self-serving  clause  of  the  will  of 
testator  should  not  be  admitted  on  behalf  of  the  executors  to 
show  that  testator  regarded  the  debt  as  unpaid. 

nifks  V.  Hicks,  9  C.  C.  (N.S.)  413,  19  C.  D.  628. 
English  V.  Arnold,  .35  Bull.  315. 

(g)  In  an  action  by  a  holder  of  a  bill  of  exchange  against 
the  other  parties  thereon,  it  is  competent  to  prove  declarations 
made  by  a  prior  holder,  before  the  transfer  and  after  the  dis- 


§212  METZLER'S    OHIO    TRIAL    EVICENCE  280 

honor  of  the  bill,  showing  that  the  parties  were   discharged 
from  liability. 

IloIIister  v.  Eeznor,  0  0.  S.  1. 

Cf.  Roberts  v.  Briscoe,  1  C.  C.  577,  1  C.  D.  323. 

212.   DECLARATIONS  OF  JOINT  PARTIES. 

(a)  Where  there  is  a  joint  relationship  existing  between 
two  or  more  parties  defendant  in  the  same  action,  an  admis- 
sion made  by  one,  concerning  the  subject-matter  in  dispute,  is 
admissible  as  against  his  co-defendants. 

Blymyer  v.  Picador,  3  0.  D.  52,  1  X.  P.  355. 
Cf.  Hueston  v.  Hueston,  2  0.  S.  488,  492. 

(b)  A  trust  may  be  established  in  a  joint  legacy  as  to  all 
legatees,  by  proof  of  a  promise  by  one  in  behalf  of  all  to  hold 
the  property  in  trust;  and  subsequent  d5elarations  of  any  of 
the  legatees  are  admissible  against  all. 

Winder  v.  Sc'.ioley.  83  0.  S.  204. 

(c)  In  an  action  against  the  surety  upon  his  bond,  the  in- 
quiry is  whether  the  declarations  of  the  princijial  were  made 
during  the  transaction  of  the  business  for  which  the  surety 
was  bound,  so  as  to  become  part  of  the  res  gestae ;  if  so,  they 
are  admissible.  The  surety  is  considered  as  bound  only  for 
the  actual  conduct  of  the  principal  and  not  for  whatever  he 
might  say  he  had  done. 

Stetson  V.  Bank,  2  0.  S.  167,  177. 

(d)  The  undertaking  of  a  surety  is  collateral ;  and  admis- 
sions by  the  principal  of  defalcations  and  their  amount  are  not 
competent  against  the  surety  unless  a  part  of  the  res  gestae. 
The  surety  is  entitled  to  original  evidence  of  the  breach  of 
the  bond. 

Stetson  V.  Bank,  2  0.  S.  167,  176. 

(e)  Entries  made  in  a  book  of  accounts  kept  by  a  person 
in  the  discharge  of  his  duty  and  during  his  term  as  officer  of 
a  bank,  are  admissible  in  evidence  both  as  against  himself  and 
his  sureties,  whether  the  book  of  accounts  was  a  book  of  orig- 
inal entries  or  otherwise. 

Stetson  V.  Bank,  12  0.  S.  577,  cS7. 


281  RES     GESTAE  §212 

(f)  The  declarations  of  a  party  in  possession  that  he  holds 
in  subordination  to  the  legal  title  are  generally  admissible ; 
but  the  declarations  of  a  husband  made  after  his  acquisition 
of  title  to  land,  to  the  effect  that  he  held  the  land  in  trust  for 
others,  are  not  admissible  to  affect  his  -widow's  claim  for 
dower,  whether  they  were  made  by  parol  or  by  deed. 

Derush  v.  Brown,  S  Oh.  412. 

(g-)  The  statute  provides  that  "whoever  aids,  abets,  or 
procures  another  to  commit  any  offense,  may  be  prosecuted 
and  punished  as  if  he  were  the  principal  offender."  The  pur- 
pose of  this  section  is  to  hold  an  accessory  before  the  fact 
equally  guilty  with  the  principal  offender,  and  not  to  intro- 
duce into  our  criminal  practice  a  new  rule  of  evidence.  The 
statute  does  not  mean  that  any  evidence  which  would  be  com- 
petent to  prove  the  guilt  of  the  principal,  if  he  were  upon  his 
separate  trial,  is  also  admissible  against  his  accessory. 

Dilcher  v.  State,  42  0.  S.  173.  177. 

See  State  v.  Bair,  50  Bull.  11. 

(h)  On  a  trial  for  subornation  of  perjury,  the  statements 
of  the  principal  offender  made  immediately  prior  to  the  com- 
mission of  the  perjury  and  in  the  absence  of  the  prisoner,  that 
the  latter  had  been  attempting  to  hire,  or  had  hired,  him  to 
commit  the  perjury,  are  inadmissible,  although  they  tend  to 
prove  the  principal's  guilt  of  the  perjury  charged. 

Dilcher  v.  State,  42  0.  S.  173. 

(i)  And  when  there  are  several  parties  defendant  whose 
interests  are  not  joint,  but  merely  common,  the  admissions  of 
one  are  not  competent  against  the  others.  Therefore,  the  state- 
ments or  acts  of  one  or  more  associated  parties  or  part  owners 
can  not  be  received  as  evidence  against  others  who  had  no 
knowledge  of  such  statements  or  acts. 

ITuepton  v.  ITiiestoTi,   2   0.  S.  488. 

Thompson  v.  Tiiouipson,   13  O.  S.  3oG. 

Baker  v.   Brennan,   12   C.   D.  211,  22   C.   C.   241. 

(j)  The  title  of  a  co-heir  is  not  affected  by  the  admissions 
of  another  co-heir.  And  the  declarations  of  one  co-heir  can 
not  be  admitted  against  another  co-heir  or  his  grantee. 

Allen  V.  Parish,  3  Oh.   107,   111. 

Bichardson   v.   Iliijjhes,   Wright,   648. 


§213  METZLER'S    OHIO    TRIAL    EVIDENCE  282 

(k)     In  an  action  to  contest  a  will,  declarations  by  a  party 

to  the  record  who  is  a  legatee  with  others  under  the  will,  are 

ina'dmissible  to  prove  mental  incapacity,  or  that  the  will  was 

•  contrary  to  the  intentions  of  the  testator  or  was  procured  by 

undue  influence. 

Seal  V.  Goobel,  11  C.  C.    (X.S.)    433.  21   CD.  286. 

Thompson  v.  Tliompson,    13  0.   S.  3oG. 

Koush  V.   Wensel,   8   C.   D.    141,   15   C.   C.   133. 

Moore  v.  Caldwell,  G  C.  C.    (N.S.)    484,   17   C.  D.  449,  59. 

Baird  v.  Detrick,  20  N.  P.    (N.S.)   209,  28  0.  D.  110. 

213.  ACTS  OF  CONSPIRATORS— EXAMINATION. 

(a)  The  principle  on  which  acts  and  declarations  of  other 
conspirators  are  admitted  in  evidence  against  the  person  pros- 
ecuted is  that  by  the  act  of  conspiring  together  the  conspira- 
tors have  jointly  assumed  to  themselves  as  a  body  the  attri- 
bute of  individuality,  so  far  as  regards  the  prosecution  of  a 
common  design,  thus  rendering  whatever  is  done  or  .said  by 
any  one,  in  furtherance  of  that  design,  a  part  of  the  res  gestae, 
and  therefore  the  act  of  all. 

Fonts  V.  Stato.  7  0.  S.  471.  177. 
Cla\v.son  V.  State,   14  ().  S.  234.  230. 
Patton  V.  State,  6  0.  S.  467,  470. 

(b)  However,  it  would  be  most  unjust  to  the  rights  of  a 
defendant  on  trial  for  a  grave  offense  to  allow  evidence  of  the 
guilt  of  other  parties  to  be  shoAvn  without  some  evidence  to 
connect  him  with  such  parties,  or  make  him  responsible  in 
some  way  for  their  conduct ;  and  great  care  should  be  exer- 
cised by  the  court  in  this  regard. 

Limerick  v.  State,   14  C.  C.  207.  7  C.  D.  664. 

(c)  Therefore,  the  rule  is  that  evidence  of  acts  or  declara- 
tions of  persons  alleged  to  be  co-conspirators  with  the  defend- 
ant on  trial,  can  not  properly  be  received  against  him,  until 
the  judge  is  satisfied  that  apart  from  them  there  are  prima 
facie  grounds  for  believing  in  the  existence  of  the  conspiracy. 

LimorTok   v.   State.   7   C   T).   064.   14   C.   C.   207. 
Hammond  v.  State,  78  U.  S.   lo,  23. 


283  RES    GESTAE  §214 

(d)  Much  latitude  is  left  to  the  trial-court  in  determining 
the  prima  facie  proof  necessary  to  admit  evidence  of  the  acts 
or  declarations  of  a  party  as  a  co-conspirator  with  one  on 
trial;  and  if  on  that  question  there  is  no  failure  of  proof  at 
any  material  point,  the  admission  of  such  evidence,  otherwise 
competent,  wjU  not  be  regarded  as  error. 

Donald   v.   State,   21    C.   C.    124,    11   C.   D.   483. 
See  Coins  v.  State,  46  0.  S.  457,  63. 

(e)  In  order  to  make  a  case  of  error  in  refusing  evidence, 
the  competency  of  which  depends  upon  proof  of  a  conspiracy, 
that  fact  must  appear  with  reasonable  clearness,  inasmuch  as 
the  question  whether  a  conspiracy  has  been  established  is  a 
matter  peculiarly  for  the  trial-court.  And  if  part  of  the  evi- 
dence of  conspiracy  is  not  given  until  after  the  declarations 
are  introduced,  it  is  not  ordinarily  reversible  error. 

Donald  v.   State,  21   C.   C.   124,   11   C.  D.  483. 
Umbenhauer  v.  State,  4  C.  C.  378,  2  C.  D.  606. 
Ditzler   V.   State,  2   C.   D.   702,  4  C.   C.  551,  6. 
Hutchinson  v.  State,  18  C.  D.  595,  8  C.  C.   (N.S.)    313,  23. 

(f)  The  evidence  of  conspiracy  should  fairly  raise  a  pre- 
sumption or  inference  of  conspiracy.  Proof  beyond  a  reason- 
able doubt  is  not  required  for  this  purpose.  But  in  order  to 
convict  a  person  by  the  act  and  declaration  of  another  person 
jointly  indicted  with  him,  a  conspiracy  must  be  proved-  beyond 
a  reasonable  doubt. 

Hutchinson  v.  State,  8  C.  C.    (X.S.)    313,   IS   C.  D.  .-^Oo. 
Ditzler   v.   State,   4   C.   C.   551,   2    C.   D.   702. 
State  V.   Snell,  2  X.  P.  55,  5   O.  D.  670. 

214.  PROOF  OF  ACTS— PRINCIPLES. 

(a)     The  acts  and  declarations  of  a  conspirator  may.  after 

sufficient  proof  of  conspiracy,  be  given  in  evidence  to  charge 

his  fellow-conspirator,  whether  they  were  jointly  indicted  or 

not;  but  the  rule  is  subject  always  to  the  limitation  that  the 

acts  and  declarations  admitted  be  those  only  which  were  made 

and  done  during  the  pendency  of  the  criminal  enterprise,  and 

in  furtherance  of  the  common  object. 

Patton  V.  State,  6  0.  S.  467. 

Fouts  V.  State,  7  0.  S.  471. 

Umbenhauer  v.  State,  4  C.  C.  378,  2  C.  D.  fi06. 


§215  METZLER'S    OHIO    TRIAL    EVIDENCE  284 

(b)  On  the  trial  of  one  of  several  defendants  jointly  in- 
dicted for  an  offense,  the  declarations  of  a  co-defendant  made 
in  the  absence  of  the  defendant  on  trial  in  furtherance  of  the 
common  purpose,  are  admissible  when  a  prima  facie  case  of 
conspiracy  has  been  made,  even  if  there  is  no  averment  of 
conspiracy  in  the  indictment. 

Goins  V.  State,  46  0.  S.  457. 

(c)  The  conspiracy  need  not  be  one  to  commit  the  identi- 
cal offense  charged  in  the  indictment,  or  even  a  similar  one; 
it  being  enough  that  the  offense  charged  in  the  indictment  v^^as 
one  which  might  have  been  contemplated  as  a  result  of  the 
conspiracy. 

Goins  V.  State,  46  0.  S.  457. 


215.  ACTS— IN  HOMICIDE  CASES. 

(a)  Where  on  a  trial  for  murder,  it  is  shown  that  the 
property  of  the  deceased  was  found  in  possession  of  a  third 
person,  an  associate  of  defendant,  the  acts  and  declarations  of 
such  third  person  at  the  time  of  the  discovery  of  the  property 
and  relating  to  its  custody,  are  admissible  against  the  de- 
fendant. 

Mimms  v.  State,   16  0.  S.  221. 

(b)  When  a  conspiracy  has  been  established  prima  facie, 
the  testimony  of  a  confederate  tending  to  prove  that  the  de- 
fendant paid  him  money  the  day  after  the  homicide,  for  serv- 
ices in  connection  therewith,  is  competent. 

State  V.  Doty,  04  0.  S.  258. 

(c)  Where  one  is  on  trial  for  homicide  and  is  defending 
on  the  ground  that  the  killing  was  done  in  repelling  the  at- 
tack of  a  mob,  he  has  a  right  to  prove  the  violent,  malicious 
and  criminal  acts  and  declarations  of  the  mob.  The  cries  of 
the  mob  from  the  time  it  was  formed,  though  made  before  the 
deceased  joined  it,  are  competent  evidence  to  prove  its  spirit 
and  purposes,  and  as  reflecting  upon  its  attitude  at  the  time 
the  alleged  attack  was  made. 

Goins  V.  state,  46  0.  S.  457. 


285  RES    GESTAE  §217 

216.  ACTS— IN  CRIMES  AFFECTING  PROPERTY. 

(a)  "  "Wliere  there  is  proof  of  a  conspiracy  between  the  de- 
fendant and  S  to  burn  a  building^,  the  testimony  of  P  to  the 
effect  that  in  furtherance  of  the  consjiiracy  he  was  employed 
by  S  to  do  the  act,  is  competent  as  a  part  of  the  res  gestae, 
even  if  it  involves  a  statement  of  S  to  P  implicating  the  de- 
fendant. 

ITutcliinson  v.  State,  8  C.  C.    (X.S.)    313,  IS  C.  D.  595. 

(b)  Upon  the  trial  of  one  accused  of  larceny  of  the  auto- 
mobile of  W,  where  the  state  relies  upon  proof  of  a  criminal 
plan  to  steal  various  cars  belonging  to  W,  C  and  others,  and 
offered  evidence  of  such  plan  and  the  larceny  of  other  cars, 
the  fact  that  the  accused  had  at  a  former  trial  been  acquitted 
of  the  larceny  of  C's  car  does  not  preclude  the  state  from 
proving  that  the  plan  embraced  the  larceny  of  C's  car.  And 
the  accused  can  not  introduce  the  record  of  such  former 
acquittal. 

Patterson  v.  State,  96  0.  S.  90. 

(c)  If  two  are  associated  to  pass  counterfeit  money,  the 

acts  of  one  in  furtherance  of  the  common  object  are,  even  if 

he  is  not  under  indictment,  evidence  against  the  other,  though 

the  acts  were  not  committed  in  his  presence. 

:\Iay  V.   State,   14  Oh.  461,   467. 
State  V.  Cook,  Tappan   (53),  85. 

(d)  When  evidence  tending  to  prove  a  conspiracy  to  forge 
a  will,  and  thus  get  control  of  property,  has  been  given,  acts 
and  declarations  of  one  conspirator,  after  as  well  as  before 
the  probate,  in  furtherance  of  the  common  j)urpose,  are  ad- 
i;.'',s'.Lle  against  himself  and  also  a  co-consjiirator. 

Corbett  v.  State,  5  C.  C.  155,  3  C.  D.  79. 

217.  ACTS— IN  CRIMES  AFFECTING  PUBLIC. 

(a)  Where  detectives  in  order  to  entrap  men  suspected  of 
bribery,  installed  a  dictograph  in  a  room  and  transmitted  con- 
versations to  a  stenographer  at  the  receiver  in  an  adjoining 
room,  the  stenographer  was  allowed  to  read  the  conversations 
to  the  jury  because  they  wore  in  furtherance  of  a  conspiracy. 

Diegle  V.  State,  23  C.  D.  82,  14  C.  C.   (N.S.)   280,  293. 


§218  METZLER'S    OHIO    TRIAL    EVIDENCE  286 

(b)  In  a  prosecution  for  making  out  and  presenting  false 
claims  to  public  officers,  where  it  is  claimed  that  defendants, 
city  employes,  conspired  with  a  member  of  a  firm  to  defraud 
the  city,  the  books  of  such  firm  are  admissible  as  part  of  the 
transactions,  although  other  members  of  the  firm  were  in  no 
way  connected  therewith. 

Davis  V.  State,  20  C.  C.  430,  10  C.  D.  738. 

(c)  Where  an  agreement  is  made  to  engage  in  a  prize- 
fight, the  declarations  of  either  party  within  the  general  rule 
are  competent  evidence  against  the  other,  though  the  agree- 
ment was  made  by  agents,  and  the  principals  were  unknown 
to  each  other.  And  letters  written  by  one  of  the  parties  to 
his  friends  describing  what,  when  and  where  the  fight  is  to  be, 
and  requesting  their  presence,  are  in  furtherance  of  an  unlaw- 
ful enterprise  and  are  admissible  against  the  other  party. 

Seville  v.  State,  49  0.  S.  117. 

218.  ACTS— UNDER  ANTI-TRUST  LAW. 

(a)  In  an  action  of  quo  warranto  charging  a  corporation 
with  forming  and  being  a  party  to  a  trust  and  conspiracy 
against  trade  in  violation  of  the  anti-trust  act,  the  state  may 
inquire  as  to  all  acts  committed  by  any  participant  from  the 
time  it  is  alleged  that  the  trust  or  conspiracy  was  formed. 

State,  ex  rel.,  v.  Register  Co.,  13  C.  C.    (N.S.)    73,  21  C.  D.  637. 
Cf.  Hammond  v.  State,  78  0.  S.  15,  23. 
State  V.  Oil  Co.,  51  Bull.  563. 

(b)  For  the  purpose  of  showing  that  the  real  object  of  a 
contract  was  to  restrain  trade  and  create  a  monopoly,  evi- 
dence of  the  contemporaneous  dealings  of  the  parties  with 
strangers  to  the  transaction  and  the  conduct  of  the  parties 
toward  each  other  touching  the  subject  of  the  contract,  have 
been  held  admissible  in  evidence. 

Cordage  Co.  v.  Cordage  Co.,  6  C.  C.  615,  3  C.  D.  613. 

(c)  But  evidence  of  statements,  conversations  and  con- 
duct of  alleged  conspirators,  not  a  part  of  the  transactions 
charged  in  an  indictment  under  the  anti-trust  law,  but  offered 
to  establish  the  existence  of  the  alleged  illegal  combination, 


287  RES    GESTAE  §219 

is  not  admissible  against  a  defendant  who  was  not  present  and 
did  not  concur  in  such  statements,  conversations  or  conduct. 

Hughes   V.   State,   9   C.   C.    (X.S.)    3G9,    19   C.   D,  237. 

See  State  v.  Oil  Co.,  51  Bull.  563. 

219.  ACTS  NOT  WITHIN  CONSPIRACY  RULE. 

(a)  But  evidence  of  the  declarations  of  a  conspirator  with 
the  accused  for  the  commission  of  crime,  when  made  in  the 
absence  of  the  accused,  is  not  admissible  against  him  to  prove 
either  the  body  of  the  crime  or  the  existence  of  the  alleged 
conspiracy,  unless  they  either  so  accompany  the  execution  of 
the  common  criminal  intent  as  to  become  a  part  of  the  res 
gestae,  or  in  themselves  tend  to  further  the  execution  of  the 
common  criminal  intent. 

Clawson  v.  State,   14  0.  S.  234. 

(b)  The  declarations  and  admissions  of  a  party  made  in 

his  own  behalf,  and  detailing  what  he  personally  intends  to 

do,  but  not  in  furtherance  of  any  concerted  action  with  others, 

are  not  admissible  as  evidence  against  an  associate  in  crime, 

although  he  and  such  associate  may  afterward  engage  in  and 

be  indicted  for  the  same  criminal  act  to  which  the  declarations 

and  admissions  related;  and  although  it  may  also  be  proved 

that,   before   the   making   of   the   declarations,   the   two   had 

jointly  arranged  to  commit  the  identical  act. 

Fouts  V.  state,  7  0.  S.  471. 

Donald  v.  State,  21   C.  C.  124,   11   C.  D.  483. 

State  V.  Bair,  50  Bull.   11. 

(c)  "Where  the  declarations  are  merely  a  narrative  of  a 
past  occurrence,  they  can  not  be  received  as  evidence  of  such 
occurrence.  They  must  be  concomitant  with  the  principal  act, 
and  connected  with  it,  so  as  to  constitute  a  part  of  the  res 
gestae.  So  where  the  defendant  and  his  son  were  jointly  in- 
dicted for  murder  by  shooting,  on  the  trial  of  the  former,  evi- 
dence of  the  son's  statements  made  at  his  home  soon  after  the 
killing  which  tend  to  show  who  fired  the  fatal  shot,  is  incom- 
petent, as  what  was  said  was  not  part  of  the  res  gestae. 

Patton  V.  State,  6  O.  S.  467. 

Donald  v.   State,   11   C.  D.  483,  21   C.  C.   124. 


§219  METZLER'S   OHIO   TRIAL    EVIDENCE  288 

(d)  Where  several  persons,  some  of  "whom  are  parties  de 
fendant,  are  alleged  to  have  conspired  together  to  entice  away 
a  wife,  the  declarations  of  any  of  such  alleged  conspirators 
are  admissible  to  show  hiiti  to  be  a  member  of  such  conspir- 
acy; but  such  declarations  are  not  evidence  against  others 
unless  strictly  within  the  requirements  of  the  rule. 

Preston  v.  Bowers,   13  0.  S.  1. 

See  Clawson  v.  State,   14  0.  S.  234,  239. 

(e)  As  showing  an  accused  person's  state  of  mind  when 
killing  another  with  whom  he  was  in  conflict,  it  is  not  com- 
petent for  him  to  prove  the  acts  or  declarations  of  a  third 
person  at  enmity  with  him,  but  in  no  wise  connected  with  the 
homicide,  notwithstanding  they  manifest  most  vicious  feeling, 
and  were  made  by  one  who  some  time  before  had  joined  the 
deceased  in  a  violent  assault  upon  the  accused. 

Donald  V.  State,  21  C.  C.  124,  11  C.  D.  483. 

(f)  AVhere  on  a  trial  for  murder,  the  testimony  discloses 
that  the  defendant  Avas  the  aggressor  and  the  person  assaulted 
was  within  the  peace  of  the  state,  and  no  testimony  has  been 
offered  tending  to  support  a  plea  of  self-defense,  it  is  error 
to  admit  testimony  of  threats  made  and  weapons  reported  in 
the  possession  of  others  than  the  deceased,  and  especially  is 
this  so  when  the  decedent  has  not  been  connected  with  the 
threats  made  or  with  the  possession  of  such  weapons. 

State  V.  Doty,  94  O.  S.  258. 

(g)  Where  a  conspiracy  to  murder  is  shown,  the  state 
may  show  by  proper  evidence  the  motives  of  those  not  on 
trial.  But  their  declarations  can  not  be  proved  to  show  their 
motives  or  malice  toward  the  deceased,  unless  such  declara- 
tions were  made  during  the  pendency  of  the  conspiracy  and 
in  furtherance  of  the  common  design.  And  their  ill-feeling  to- 
ward the  deceased  can  not  be  proved  for  the  purpose  of  show- 
ing a  conspiracy  between  them  and  the  defendant  to  commit 
the  homicide. 

Rufer  V.  State,  25  0.  S.  464. 


CHAPTER  XVI. 

OBJECTIONS  AND  EXCEPTIONS. 

220.  General   principles. 

221.  Error   in    adiiu-sioii — Principles. 

222.  Admission — Tiie   ncord. 

223.  Admission — Prejudice. 

224.  Admission  of   indecisive  evidence. 

225.  Admission — Subsequent   explanation. 

226.  Admission — Facts    not    in    i.^sue. 

227.  Error    in   exclusion — Princi|)les. 

228.  Exclusion  of  indecisive  evidence. 

229.  Exclusion  of,  cumulative  evidence. 

230.  Exclusion — Later  admission. 

231.  Exclusion — Invited  error. 

232.  Exclusion — Prejudice. 

233.  Verdict  on  two  issues. 

234.  Offer  and   objection. 

235.  Time   for   objection. 

236.  Repeated   rulings. 

237.  Statement   of  expected   proof. 

238.  Motion    to  rule   out. 

239.  The    motion    must    be    specific. 

240.  Instruction   to    disregard. 

241.  Forms   of    instructions. 

220.  GENERAL  PRINCIPLES. 

(a)  An  exception  is  an  objection  taken  to  a  decision  of 

the  court  upon  a  matter  of  law.    The  object  of  an  exception  is 

to  bring  upon  the  record  for  review  the  decision  of  the  court. 

When  an  objection  is  made  tc  the  introduction  of  evidence, 

the  court  must  decide  whether  it  is  admissible  or  not;  if  either 

of  the  parties  upon  hearing  the  decision  is  not  satisfied,  he 

may  except. 

Section    115.50,   General   Code. 
Phillips'    Code    Pleading.    Section    527. 

(b)  The  rulings  of  the  trial-court  on  the  admission  or  ex- 
clusion of  evidence,  like  most  other  interlocutory  decisions, 
are  not  entered  upon  the  record.    So  when  it  is  desired  to  sub- 

289 

mktzi.kk's  trim,  ev. — 10 


§221  METZLER'S   OHIO    TRIAL    EVIDENCE  290 

mit  such  exceptions  to  a  reviewing  court,  they  must  be  made 
a  part  of  the  record  by  means  of  a  bill  of  exceptions.  Error 
can  not  be  assigned  upon  any  ruling  of  the  court  in  the  prog- 
ress of  a  trial,  unless  by  the  bill  of  exceptions  it  appears  that 
an  exception  was  taken  to  such  ruling. 

Section   11564,   General    Code. 

Iron  Co.  V.  Street,   19   Oh.   300. 

Cf.    Mnnd    V.    Motz,    14    N.    P.     (N.S.)     239. 

(c)  No  particular  form  of  exception  is  required.  The 
exception  must  be  stated  with  the  facts,  or  so  much  of  the 
evidence  as  is  necessary  to  explain  it,  and  no  more ;  and  the 

whole  as  briefly  as  possible. 
Section    11562,   General   Code. 

(d)  In   a  proceeding  to  reverse  a  judgment   in   either  a 

civil  or  criminal  case,  the  court  regards  the  record  as  free 

from  error  until  the  contrary  appears.     And  a  judgment  will 

not  be   reversed  merely  because   the   record   shows   error  to 

which  exception  was  taken.     No  exception  will  be  regarded 

unless  it  is  material  and  prejudicial  to  the  substantial  rights 

of  the  party  excepting. 

McHugh  V.  State,  42  0.  S.  154. 

Scovern   v.    State,   6   0.   S.   2SS. 

Sharkey  v.  State,  4  C.  C.   101,  2   C.  D.  443. 

Section    11573,   General    Code. 

(e)  And  ordinarily,  a  reviewing  court  will  consider  all  ex- 
ceptions not  presented  by  oral  argument  or  brief  as  not  well 
taken,  A  request  by  counsel  that  the  court  examine  the  rec- 
ord, and  pass  upon  all  exceptions  to  the  admission  and  rejec- 
tion of  evidence  will  be  ignored ;  especially  where  the  plaintiff 
in  error  is  represented  by  experienced  counsel. 

Railway  v.  Reynolds,  21   C.  C.  402.  11   CD.  701. 
See  Electric  Co.  v.  Deubler,  7   C.  C.   185,  3  C.  D.  720. 

221.  ERROR  IN  ADMISSION— PRINCIPLES. 

(a)  The  question  of  the  competency  of  evidence  will  not 
be  considered  by  a  reviewing  court,  where  no  exception  was 
taken  to  its  admission.     And  incompetent   evidence,   such  as 


291  OBJECTIONS     AND     EXCEPTIONS  §222 

hearsay,  admitted  Avithout  exception  has  its  natural  probative 
effect. 

Kohn  V.  state,  14  C.  C.    (X.S.)   31,  23  C.  D.  417. 

Thompson  v.  Ackerman,  21  C.  C.  740,   12  C.  D.  456. 

Lippert  V.  Page,    13   C.   C.    (N.S.)    105,  22  C.  D.  38. 

(b)  The  rule  applies  when  the  trial-judge  asks  questions 
from  the  bench ;  there  is  no  error  unless  the  evidence  is  inad- 
missible, and  objections  are  made  and  exceptions  saved.  While 
the  trial-court  should  not  unduly  interfere  with  the  examina- 
tion of  Avitnesses  to  the  prejudice  of  either  party,  yet  the 
trial-court  has  a  right  to  guide  the  trial,  and,  if  necessary,  to 
develop  the  facts  requisite  to  a  fair  presentation  of  the  case. 

Cereal  Co.  v.  Boltz,  21  C.  C.    (N.S.)    532. 
Baird  v.  Detrick,  8  0.  App.  198,  28  O.  C.  A.  257. 

(c)  Whether  evidence  will  be  admitted  out  of  time  in  the 
progress  of  a  trial  is  a  question  addressed  to  the  sound  discre- 
tion of  the  court;  and  where  that  discretion  is  exercised  with- 
out abuse  of  the  power,  the  mere  irregularity  of  its  admission 
is  not  a  sufficient  ground  for  the  reversal  of  a  judgment. 

Bean  v.  Green,  33  0.  S.  444. 
Webb  V.  State,  29  0.  S.  351. 
Schoch   V.  Schoch,  6   C.  C.    (X.S.)    110,   17   C.  D.   828. 

(d)  The  exclusion  of  evidence  is  generally  an  evil,  and 
admission  generally  safe  and  wise.  Justice  has  suffered,  not 
from  too  free  admission,  but  from  too  rigid  exclusion  of  evi- 
dence. But  when,  at  best,  the  relevancy  of  evidence  is  a  mat- 
ter of  very  serious  doubt,  it  is  always  safer  to  exclude. 

Bell   V.  Brewster,   44  0.  S.  600,  fiCO. 

Studer  V.   State,  9   C.  C.    (X.S.)    1S«,    19   C.   D.  33. 

Knight  V.  State,  54  O.  S.  365,  381. 

222.  ADMISSION— THE  RECORD. 

(a)  When  improper  evidence  is  admitted,  the  record  must 
show  the  evidence  or  its  tendency;  for  the  record  must  affirm- 
atively show  not  only  that  error  intervened,  but  that  it  was  to 
the  prejudice  of  the  party  seeking  to  take  advantage  of  it. 

Scovern  v.  State,  6  0.  S.  288.  204. 

Fuller   V.   Coats,    18   O.   S.    343. 

Alpin   V.   Morton,  21    O.    S.   536,   546. 


§223  METZLER'S    OHIO    TRIAL    EVIDENCE  292 

(b)  If  a  writing  is  admitted  in  evidence,  and  the  contents 
of  the  writing  or  its  tendency  is  not  disclosed  by  the  record, 
no  prejudice  is  made  to  appear.  And  where  the  record  does 
not  disclose  all  the  extrinsic  evidence  admitted  under  an  ex- 
ception to  the  parol  evidence  rule,  a  reviewing  court  will  not 
hold  that  improper  evidence  was  received. 

Dudley  v.  Iron  Co.,  13  O.  S.  168,  172. 
Ashvvorth  v.  Carleton,  12  0.  S.  381. 
See  Masters   v.   Freeman,   17   0.   S.  323. 

(c)  When  the  objection  to  an  improper  question  is  over- 
ruled and  the  witness  allowed  to  answer,  the  record  must  show 
what  the  answer  was,  so  that  the  reviewing  court  may  be  able 
to  say  whether  it  was  favorable  or  unfavorable  to  the  party 
objecting. 

Scovern  v.  State,  6  0.  S.  288,  294. 

223.  ADMISSION— PREJUDICE. 

(a)  Where  all  the  testimony  is  not  set  out  in  the  rer-ord, 
but  enough  appears  to  show  that  testimony  calculated  to  mis- 
lead has  been  erroneously  permitted  to  go  to  the  jury,  it  will 
be  presumed  that  such  testimony  was  prejudicial  to  the  party 
against  whom  it  was  offered. 

Sherer  v.  Piper,  26  O.   S.   470. 
Taylor   v.   Boggs,   20  0.   S.  516. 

(b)  And  prejudice  is  presumed  when  incompetent  evi- 
dence, material  to  the  issue,  is  allowed  to  go  to  the  jury  in 
favor  of  the  prevailing  party  against  objection.  In  such  case 
it  is  not  necessary,  in  order  to  reverse  the  judgment,  to  show 
that  the  jury  was,  in  fact,  influenced  by  such  evidence ;  but 
to  prevent  a  reversal  the  bill  must  show  that  the  party  was 
not  prejudiced. 

Board  of  Education  v.  Mills,   38  O.   S.  383. 
Transit  Co.  v.  Stephenson,   12   C.   D.  631. 
Lowe  V.  Lehman,  15  0.  S.  179. 

(c)  Where  disputed  facts  are  to  be  found  on  evidence  of 
no  determinate  value  dependent  entirely  upon  the  credit  to 
be  given  to  witnesses,  and  illegal  evidence  has  been  admitted, 
it  is  often  impossible  to  say  what  might  or  should  have  been 


293  OBJECTIONS    AND     EXCEPTIONS  §-24 

the  result  if  the  illegal  evidence  had  not  been  received;  and 
in  such  cases  the  judgment  "will  be  reversed. 
Ptetson    V.   Bank.   2   0.   S.    167. 

(d)  Where  hearsay  testimony  was  objected  to,  but  per- 
mitted to  go  to  the  jury,  the  judgment  Avill  be  reversed  unless 
it  manifestly  appears  that  its  admission  could  not  have  pre- 
judiced the  party  against  whom  it  was  otfered.  But  if  a 
statement  was  admissible  under  the  state  of  the  pleadings, 
the  fact  that  it  was  admitted  as  res  gestae  would  not  warrant 
a  reversal  of  the  judgment. 

Wilson  V.  Bark-alow,  11  0.  S.  470. 

Preston  v.  Bowers,  13  0.  S.  1. 

Insurance  Co.   v.   Schmidt,   40  0.   S.    112. 

Schaal  v.  Heck,   17  C.  C.  38,  8  C.  D.  596. 

(e)  When  an  issue  of  fact  is  tried  by  the  court,  the  ad- 
mission of  incompetent  evidence  on  behalf  of  the  plaintiff  will 
be  ground  for  reversal  of  a  judgment  for  plaintiff,  if  it  ap- 
pears that  upon  the  competent  evidence  in  the  case,  the  find- 
ing ought  not  to  have  been  made. 

Cook  V.  Slate  Co.,  36  0.  S.  135.. 

(f)  The  error  in  admitting  the  declarations  of  an  imbe- 
cile prosecutrix  in  a  rape  case  can  not  be  cured  by  the  court 
in  its  charge  as  to  the  purpose  for  which  such  declarations 
were  admitted,  when  the  other  evidence  is  insufficient  to  con- 
vict. 

Hornbeck   v.   State,   35   0.   S.   277. 

224.  ADMISSION  OF  INDECISIVE  EVIDENCE. 

(a)  As  hereinbefore  stated,  to  justify  a  reversal,  the  evi- 
dence admitted  must  be  both  erroneous  and  prejudicial.  There 
is  no  prejudice  when  the  evidence  did  not  add  any  facts  to  the 
case,  and  could  have  had  no  weight  with  the  jury,  and  was 
neither  a  benefit  to  one  party  nor  an  injury  to  the  other. 

Moran  v.  State,  .5  C.  D.  234,  11   C.  C.  464. 

Green  v.   Railway,  5  C.  C.    (N.R.)    497,   16  C.   D.  CO!). 

Price  V.  Coblitz,  12  C.  D.  34,  21   C.  C.  732. 


§  224  METZLER'S   OHIO    TRIAL    EVIDENCE  294 

(b)  If  a  witness,  having  stated  the  material  facts  in  rela- 
tion to  a  transaction,  superadded  an  immaterial  fact,  the 
judgment  will  not  be  reversed  when  it  is  apparent  that  such 
immaterial  fact  could  not  have  prejudiced  the  rights  of  the 
party  objecting  to  the  testimony. 

Dickey  v.   Bcatty,   14  0.   S.   389. 

Blackburn   v.   Blackburn,   8  Ob.   81,  84. 

Cf.  Heffron  Co.  v.  Coleman,   13  C.  C.    (N.S.)    47,  22  C.  D.  242. 

(c)  Where  a  witness  saw  the  prisoner  shoot  the  deceased 
and  identified  him  at  the  trial,  his  further  testimony  that  he 
pointed  out  the  prisoner  at  the  police  station,  though  not  ad- 
missible, is  not  ground  for  reversal,  for  it  added  no  weight  to 
his  testimony. 

Duranec  v.  State,  16  C.  C.    (X.R.)    20,  27   C.   D.  287. 

(d)  The  admission  of  incompetent  evidence  in  a  case  is 
not  reversible  error  if  the  competent  evidence  sustains  the 
same  fact  sufficiently,  so  that  the  result  would  have  been  the 
same  if  the  incompetent  evidence  had  not  been  admitted. 

Black  V.   Hill.  32   0.  S.   313. 

Field  Co.  v.  Cordage  Co.,  6  C.  C.  615,  3  C.  D.  613. 

Terry  v.   State,   3   C.  C.    (N.S.)    ,503,   14   C.  D.   111. 

Banning  v.  Banning,  12  O.  S.  437. 

Thayer  v.  Luce,  22  0.  S.  62. 

(e)  A  judgment  will  not  be  reversed  for  technical  errors 
in  admitting  evidence,  where  it  clearly  appears  from  the  evi- 
dence that  the  jury  could  have  reached  no  other  conclusion. 
So  the  admission  of  incompetent  evidence  will  not  justify  the 
reversal  of  a  judgment  where  substantial  justice  has  been 
done. 

Armstrong  v.  Insurance  Co.,  22  C.  C.    (X.S.)    129,  4  O.  App.  46. 
Traction   Co.   v.   Sterling,   9    C.    C.    (N.S.)    200,    19   C.   D.   227. 
Traction  Co.  v.  Jenkins,  3  0.  App.  161,  19  C.  C.  (N.S.)   602,  26  C.  D.  30. 

(f)  "Where  plaintiff's  case  is  abundantly  proved,  error  in 
the  admission  of  plaintiff's  evidence  which  is  not  contradicted, 
is  neither  material  nor  prejudicial ;  and  a  new  trial  will  not  be 
granted. 

Cincinnati   v.   Roettinger,   11    C.   C.    (N.S.)    501,   21   C.  D.  252. 
Smith  V.  State,  15  C.  C.   (N.S.)   223,  24  C.  D.  526. 


295  OBJECTIONS    AND     EXCEPTIONS  §225 

is)     Where  it  appears  that  a  party  has  given  iu  evidence 

an  instrument  which  has  not  been  attacked,  to  which  the  law 

assigns  a  specific  legal  effect,  and  which  alone  entitles  him  to 

recover,  a  judgment  in  his  favor  will  not  be  disturbed  on  the 

ground  that  he  had  given  incompetent  evidence. 

Stetson  V.  Bank,  2  0.  S.   1fi7. 

Cf.  Schiff  V.  Sentker,   10   A.  L.   R.  568,  6  0.  D.   R.   1137. 

(h)  In  a  case  involving  circumstantial  evidence,  where 
some  latitude  in  the  matter  of  evidence  is  necessary,  the  judg- 
ment will  not  be  reversed  because  evidence  was  admitted 
which  was  unnecessary  but  not  prejudicial. 

Studer  v.  State,  0   C.  C.    (X.S.)    1S.5,   10  C.  D.  .33. 

(i)  A  finding  of  the  jury  may  show  that  admitted  evi- 
dence was  not  prejudicial.  When  the  jury  finds  that  the 
motorman  had  ample  time  to  stop  the  car  and  avoid  injuring 
the  plaintiff,  testimony  to  show  the  time  within  which  ears 
had  been  stopped  at  other  times  and  places  is  not  prejudicial. 

Railway  v.  Hunter,   10  C.  C.    (X.S.)    r)fi4.   12  C.  D.  760. 

(j)  When  a  plaintiff  fails  to  introduce  any  evidence  tend- 
ing to  prove  his  cause  of  action,  and  the  defendant  intro- 
duces incompetent  evidence,  this  is  no  ground  for  reversing 
the  judgment  for  defendant,  because  the  judgment  is  properly 
founded  upon  the  failure  of  proof. 

State  V.  .Japan   Co.,  66  O.  S.   1S2. 

Harlan  v.  Gunderson,  20  C.  C.   (N.S.)   462.  3  O.  App.  141.  26  C.  D.  441. 

(k)  And  in  a  trial  to  the  court,  if  it  appeai-s  from  the 
pleadings  and  evidence  that  plaintiff  is  not  entitled  to  any  re- 
lief, a  judgment  for  defendant  will  not  be  reversed  solely  for 
the  reason  that  defendant,  after  plaintiff  had  rested  his  case, 
was  permitted  to  give  incompetent  evidence. 

Cotton  V.   Ashley,   7   C.  "D.  242,   13   C.   C.  .53.'>. 

Cf.  Douglas  V.  bownend,   11   C.  C.    (N.S.)    300,  20  C.   D.   640. 

225.  ADMISSION— SUBSEQUENT  EXPLANATION. 

(a)  When  the  effect  of  improper  and  pi-ojudicial  evidence 
is  cured  by  subsequent  explanation,  it  can  luit  thereafter  be 
regarded  as  prejudicial.     So  the  erroneous  admi.ssion  of  oral 


§226  METZLER'S    OHIO    TRIAL    EVIDENCE  296 

evidence  of  a  written  agency  is  not  prejudicial  if  it  is  in  proof 
that  the  principal  ratified  the  act. 

Railway   v.  Watcrworth,   11   C.   D.  621,  21   C.   C.  405. 
Searles  v.  State,  6  C.  C.  331,  3  C.  D.  478. 

(b)  The  testimony  of  a  brakeman  that  he  did  not  know 
of  any  rule  of  the  railroad  company  requiring  him  to  ride  at 
a  certain  place  on  the  train,  can  not  be  regarded  as  prejudi- 
cial error  where  it  appears  that  the  book  containing  the  rule 
was  subsequently  placed  before  the  jury. 

Railway   v.   Hudson,   22    C.   C.   586,   12   C.   D.   661. 

226.  ADMISSION— FACTS  NOT  IN  ISSUE. 

(a)  The  fact  that  a  party  was  examined  on  a  matter  not 
at  issue,  or  that  the  adverse  party  offered  evidence  of  matters 
he  was  not  bound  to  prove,  will  not  avail  on  error  unless  pre- 
judicial. 

Minzey  v.  Marcy  Co.,   6   C.   C.    (X.S.)    503,   15   C.  D.  593. 
Westwater  v.  Pool  Co.,  12  C.  C.    (N.S.)    3S2. 
Reynolds   v.   Rogers,   5   Oh.    169. 

(b)  A  judgment  will  not  be  reversed  on  error  for  the 
erroneous  admission  of  evidence,  where  it  appears  from  the 
record  that  the  fact  which  the  evidence  tended  to  prove  was 
admitted  by  the  party  seeking  the  reversal ;  and  that  the  evi- 
dence was,  therefore,  in  no  way  prejudicial  to  him. 

Evans  v.  Reynolds,  32  O.   S.   163. 

Ford  V.  State,  20  C.  D.  502,   11   V.  C.    (N.S.)    324,  328. 

Wlielan  v.  Kinsley,  26  0.  S.   131.   136. 

Insurance  Co.   v.  Kelly,  24  O.  S.   345,  361. 

(c)  And  where  there  was  no  dispute  about  a  matter,  and 
it  was  testified  to  by  another  witness,  the  admission  of  incom- 
petent evidence  on  the  point  can  not  be  regarded  as  preju- 
dicial. 

Railway  v.  Waterworth,  21   C.  C.  495,  11  C.  D.  621. 

(d)  In  almost  every  trial  there  are  necessary  facts  which 
the  parties  treat  as  admitted  without  formal  proof.  To  make 
the  absence  of  express  proof  in  such  cases  ground  for  error 
after  verdict  and  judgment  would  be  unfair  and  attended 
with  great  inconvenience. 

Lewis   V.   Bank.    12   Oli.    132,    148. 

Cincinnati   v.  Roettinger,  21    C.  D.  2.52,    11    C.  C.    (N.S.)    501,  2. 


297  OBJECTIONS    AND     EXCEPTIONS  §228 

227.  ERROR  IN  EXCLUSION— PRINCIPLES. 

(a)  It  is  error  to  exclude  proper  evidence  of  only  slight 
weight  or  to  take  it  from  the  jury  after  it  has  been  intro- 
duced, if  exception  is  taken.  But  a  judgment  will  not  be  re- 
versed for  such  error,  if  the  record  shows  that  the  plaintiff  in 
error  could  not  have  been  prejudiced  thereby. 

Penn.  Co.  v.  :\rahonev,  12  C.  D.  366.  22  C.  C.  460. 
Farrell   v.  State,  32  0.  S.  4.56,  461. 
Whitman  v.  Keith,    18  0.   S.   134. 

(b)  It  is  error  to  exclude  statements  of  a  witness  which 
are  contradictory  to  his  previous  testimony  on  the  ground  that 
they  were  mere  opinions,  when  such  statements  carry  with 
them  an  affirmance  of  facts.  And  where  mental  sufferinsr  is 
a  proper  element  of  damage,  and  evidence  on  that  subject  is 
excluded  by  the  trial-judge,  an  instruction  to  the  jury  that 
recovery  may  be  had  on  this  account  does  not  cure  the  error 
in  excluding  the  evidence. 

Heintz  v.  Calchvell,  9  C.  B.  412,  16  C.  C.  630. 

(c)  It  is  error  for  the  trial-court  to  reject  evidence  be- 
cause no  reference  was  made  to  it  in  the  preliminary  state- 
ment to  the  jury.  A  party  is  not  limited  in  his  evidence  by 
such  statement.  Evidence  that  is  relevant  and  competent 
should  be  admitted,  whether  reference  to  it  is  made  or  not. 

McFarland  v.  Clark,  8  0.  App.  326,  28  O.  C.  A.  217,  29  C.  D.  449. 

(d)  The  giving  of  a  wrong  reason  by  a  trial-judge  for 
the  exclusion  of  evidence  is  not  ground  for  reversal  of  the  re- 
sulting judgment,  where  the  exclusion  itself  is  proper. 

Bnnner  v.  Tson,  8  C.  C.    (X.S.)    260,   IS  C.  D.  4r)9. 

Ludlow  V.   Park,  4  Oh.  .5,  44. 

Courtri<»ht  v.  Staggers,   15  0.   S.   511,   514. 

(e)  When  evidence  of  a  payment  has  been  improperly  ex- 
cluded by  the  trial-court,  and  the  deferulant  in  error  shows  to 
the  reviewing  court  that  he  has  remitted  from  his  judgment 
the  amount  of  such  payment  and  interest,  tbe  judgment  will 
not  be  reversed  for  such  error. 

Doolittle  V.  McCullough,  7   0.  S.  299. 

228.  EXCLUSION  OF  INDECISIVE  EVIDENCE. 

(a)  No  prejudice  arises  to  a  party  from  the  exclusion  of 
his  evidence,  when  his  case  is  proved  without  it.     So  where, 


§229  METZLER'S   OHIO   TRIAL    EVIDENCE  298 

in  an  action  to  recover  for  negligence,  the  jury  returned  a 
verdict  in  a  small  amount  for  plaintiff,  the  exclusion  of  plain- 
tiff's testimony  tending  to  show  defendant's  negligence  was 
not  prejudicial. 

Gentile  v.  Railway,  0  0.  D.   Ill,  4  X.  P.  9. 

(b)  And  where  in  an  action  against  a  railway  company 
for  wrongful  death  it  appears  that  decedent  was  guilty  of 
negligence  which  would  bar  his  recovery,  the  exclusion  of 
material  and  proper  evidence  as  to  the  negligence  of  the  rail- 
way company  can  not  be  regarded  as  prejudicial. 

McCarty   v.   Railway,    11    C.   D.   220.   20   C.   C.   Z?,Ck   .-4.'). 
Cf.  Courtright  v.  Staggers,   15  0.  S.  511,  514. 

(c)  And   when  proper   evidence   is   excluded   which   could 

have  been  of  no  benefit  to  the  ]iarty  offering  it,  as  Avhen  the 

evidence  does  not  tend  to   prove  the   party's  case,   or  relates 

to  a  fact  not  necessary  to  the  case,  it  is  not  prejudicial  error. 

TTinit  V.  Dao-jrett,  2   Rull.   22.   7   O.   D.   R.  260. 
Sliadle   V.    Illuniinatin.u    Co.,    12   C.    D.   .37.   22   C.   ( '.   40. 
Coal   Co.   V.   Bank,   6   C.   C.    (X.S.)    22.1.    17    C.    1).   207. 
Bowman  v.   Hartman,  6  C.  C.    (N.S.)    264,   17  C.  D.  300. 

(d)  ^\'hen  the  trial-court  excluded  proper  evidence,  a  re- 
viewing court  will  not  distnrb  the  verdict  where  all  the  evi- 
dence and  all  the  proceedings  are  before  it  in  the  record,  and 
it  appears  that  the  jury  would  have  been  manifestly  nnjusti- 
fied  in  giving  any  appreciable  Aveight  to  the  rejected  evidence 
had  it  been  admitted. 

Devero   v.  State,   .1   C.   D.   240,  5   C.   C.   500. 

Cf.   Hart  V.  .Jo!in.son.  6  Oli.   S7.  01. 

Cincinnati   v.   Roettinger,    11    C.   C.    (X.S.)    501.  21    C.   D.  252. 

Bigalow    Fniit   Co.   v.   Thixley,  23   C.   C.    (N.S.)    470. 

229.  EXCLUSION  OF  CUMULATIVE  EVIDENCE. 

(a)  It  is  a  general  rule  that  if  the  excluded  evidence  is 
merely  cumulative  there  is  no  prejudicial  error ;  but  evidence 
of  an  excluded  witness  can  not  be  said  to  be  cumulative  be- 
cause the  same  as  that  of  other  witnesses,  if  the  credibility  of 
such  other  witnesses  is  attacked  by  cross-examination  or  other- 
wise. 

Whitman  v.  Keith,  IR  0.  S.  134.  149. 
Dickson  v.  State,  30  0.  S.  73,  77. 


299  OBJECTIONS    AND    EXCEPTIONS.  ^231 

(b)  So  also,  if  a  competent  fact  is  proved  by  an  interested 
A\  itness  it  is  error  to  exclude  corroboration  by  a  disinterested 
M-itness.  The  former  proof  does  not  render  the  error  imma- 
terial. 

Turner  v.  Rtato,  5  C.  C.  537,  3  C.  D.  263. 

Cf.   Railway   v.  Ilorriok,  49  O.  S.  25,  28. 

230.  EXCLUSION— LATER  ADMISSION. 

(a)  If  it  appears  from  the  record  that  the  evidence  in- 
tended to  be  elicited  by  the  excluded  question  w^as  in  fact 
afterward  received,  so  that  no  prejudice  was  done,  the  excep- 
tion can  not  be  sustained. 

Gandolfo  v.  Ptato,  11  0.  S.   114. 

Allen  V.  Lowo.   10  C.   D.  3.-)3.   10   C.  C.   353. 

Zeltner  v.  State,   13  C.  C.    (N.S.)    417.  22  C.  D.   102. 

(b)  Where  on  trial  to  a  jury  a  party  offers  competent 
evidence  which,  upon  objection  is  excluded,  but  afterward  the 
same  witness  being  upon  the  stand,  the  subject  is  without  ob- 
jection fully  inquired  into,  and  the  questions  which  had  been 
held  incompetent  are  fully  answered,  the  error  will  be  deemed 
cured. 

ATank   v.   Bnindajje,  -68   O.   S.   80. 

Tlnirnian   v.  State,  2   C.  D.   400.  4   C.  C.   141. 

Cf.  Burch  V.  State,  5  0.  D.  137.  7  X.  P.  379. 

(c)  However,  the  error  of  excluding  competent  evidence  is 
not  cured  by  the  consent  of  the  adverse  party  afterward  while 
the  same  witness  is  under  cross-examination,  to  go  into  the 
inquiry  proposed  by  the  rejected  evidence.  In  such  case,  it 
woidd  go  to  the  jury  with  the  stamp  of  judicial  disapproval. 

Reynolfls  v.  Tucker,  0  0.  S.  510.  519. 

231.  EXCLUSION— INVITED  ERROR. 

(a)  Where  a  party  causes  proper  evidence  to  be  ex- 
cluded, he  can  not  afterward  say  that  no  such  evidence  was 
submitted.  A  party  can  not  be  permitted,  either  intention- 
ally or  unintentionally  to  lead  a  court  into  the  commission  of 
an  error,  and  then  procure  a  reversal  of  the  judgment  for  an 
error  for  which  he  was  actively  responsible. 

Duhme  Co.  v.  TTazen,  6  C.  C.    (X.S.)    000,  17  C  D.  079. 
State  V.  Kollar,  03  O.  S.  89,  91. 

(b)  Where  in  a  suit  for  recovery  of  the  value  of  services, 
the  defendant  causes  proper  evidence  of  value  to  be  excluded, 


§232  METZLER'S    OHIO    TRIAL    EVIDENCE  300 

he  can  not   afterward  say  that  no   evidence   as   to   value  has 
been  submitted  to  the  jury. 

Diilinie  Co.  v.  TTazcn,  0  C.  C.    (X.R.)    606,   17   C.   D.   679. 

Clark  V.  Boltz,  10  C.  C.    (N.S.)    1,  19  C.  D.  mr>. 

(c)  And  where  plaintiff  sues  for  damages  for  breach  of 
contract,  and  all  his  evidence  of  the  contract  and  its  breach 
has  been  improperly  excluded  upon  the  objection  of  the  de- 
fendant, and  upon  motion  of  defendant  a  verdict  was  directed 
in  his  favor,  the  defendant  will  not  be  heard  to  say  that  there 
was  no  evidence  of  damages  and  that  the  court  properly 
directed  the  verdict. 

Kneipper  v.  Richards,  7  C.  C.    (X.S.)    581,  16  C.  D.  245. 

232.  EXCLUSION— PREJUDICE. 

(a)  In  order  to  justify  the  reversal  of  a  judgment  on  the 
ground  that  the  court  below  refused  to  permit  certain  evi- 
dence to  be  given,  it  is  incumbent  on  the  party  complaining 
to  show  affirmatively  that  he  was  entitled  to  offer  such  evi- 
dence for  some  purpose  stated  in  or  manifest  from  the  record. 
And  the  record  must  show  that  the  fact  to  be  proved  was  so 
material  that  the  rejection  of  the  evidence  was  prejudicial. 

Hamilton  v.  State,  34  0.  S.  82. 
Bean  V.   Green,  33   0.   S.  444. 
Hummel  v.  State,   17  0.  S.  628. 
Palmer  v.  Yarrington,   1   0.   S.   253. 

(b)  Where  the  record  does  not  disclose  what  reply  the 
witness  would  have  made  had  he  been  permitted  to  answer,  a 
reviewing  court  will  not  presume  that  the  answer  would  have 
been  material  or  favorable  to  the  plaintiff  in  error,  or  that  the 
sustaining  of  the  objection  to  the  question  was  prejudicial,  or 
that  the  rejection  of  the  answer  was  improper. 

Miller  V.   Donahue,   11   C.  C.    (N.S.)    436,  21   C.  D.  38. 

(c)  The  conviction  of  an  accused  will  not  be  reversed  for 
refusing  him  leave  to  show  by  preliminary  proof  that  his  con- 
fession was  obtained  by  improper  inducements,  unless  the 
facts  constituting  the  alleged  inducements,  as  proposed  to  be 
proved  are  set  out  in  the  record. 

Ifufcr  V.  State,  25  0.  S.  464. 

(d)  "Where  a  prisoner  was  examined  as  a  witness  and  his 
counsel  asked  him  with  what  intent  he  made  the  assault 
charged,  but  without  showing  what  answer  was  expected  and 


301  OBJECTIONS    AND     EXCEPTIONG  i^  232 


0 


the  court  refused  to  permit  the  question  to  he  answered,   it 
was  held  that  there  was  no  prejudicial  error. 

Bolen  V.  State,  26  0.  S.  371. 

Cf.  Oviatt  V.  State,  19  O.  S.  573. 

(e)  "When  the  bill  of  exceptions  shows  that  the  court  ruled 
out  certain  letters,  but  the  evidence  rejected  is  not  made  part 
of  the  bill,  there  is  no  way  of  determining  whether  they  were 
properly  or  improperly  rejected. 

Palmer  v.  Yarrington,   1   0.   S.  253,   261. 
Heptasophs   v.   Fife,    16   C.   C.    (N.S.)    205,   206. 

(f)  The  refusal  of  the  trial-court  to  permit  an  oflficer  of 
an  insurance  company  to  testify  as  to  the  time  when  he  signed 
a  policy  can  not  be  considered  on  error,  where  the  statement 
in  the  record  does  not  disclose  any  definite  time  that  the  wit- 
ness would  say  was  the  date  of  signing. 

Grand  Lodge  v.  Bunkers,  3  C.  C.    (N.S.)   256,  13  C.  D.  4S7. 

(g)  AThere  a  witness  whose  deposition  is  being  taken  be- 
fore a  notary  public  refuses  to  answer  a  question,  the  mate- 
riality or  admissibility  of  which  it  is  necessary  to  determine  in 
order  to  commit  him  for  contempt,  it  is  essential  that  counsel 
fully  set  out  what  he  expected  to  prove  by  the  inquiry. 

In  re  Turner,  8  N.  P.  241,  11   0.  D.  251. 

(h)  "Where  it  is  stated  in  the  record  that  for  tlie  ])urpose 
of  proving  a  series  of  specified  facts,  most  of  which  were  in- 
admissible as  evidence,  a  number  of  witnesses  Avere  asked  a 
series  of  specified  questions  without  showing  what  was  ex- 
pected to  be  proved  in  reply  to  any  particular  one,  a  judg- 
ment Avill  not  be  reversed  on  exceptions  for  ruling  out  the 
questions ;  for  it  can  not  be  told  which  one,  if  any,  of  them, 
was  excluded  to  the  prejudice  of  the  party  excepting. 

Powers  V.  Railway,  33  O.  S.  429. 

(i)  "Where  an  admission  is  sought  to  be  proved  ;nul  the 
court  sustains  an  objection  to  its  competency,  but  not  to  the 
competency  of  the  witness,  it  is  necessary  that  tlio  substance 
of  the  admission  should  appear  in  tlic  bill  of  exceptions. 

TTollistor  v.  Peznor,  9  0.  S.   1. 

Thurman  v.   State,  2  C.  D.  466,  4   C.   C.   141. 


§  234  METZLER'S   OHIO   TRIAL    EVIDENCE  302 

233.  VERDICT  ON  TWO  ISSUES. 

(a)  Where  there  are  two  aspects  under  which  the  claim  of 
plaintiff  might  be  established,  and  the  jury  found  in  his  favor, 
the  judgment  will  not  be  reversed  for  error  in  admitting  or 
excluding  evidence  on  one  issue  exclusively ;  but  it  will  be 
affirmed  unless  the  errors  complained  of  are  of  such  a  char- 
acter as  to  vitiate  the  verdict  as  to  both  issues. 

Gund  V.   Fixture   Co.,    14   C.   C.    (N.S.)    493,  22   C.   D.   07(i. 

(b)  When  distinct  issues  arising  on  several  defenses  are 
submitted  to  a  jury,  and  there  is  a  general  verdict  for  the  de- 
fendant, the  erroneous  admission  or  rejection  of  evidence  on 
one  of  the  defenses  does  not  of  itself  render  the  judgment 
entered  upon  the  verdict  erroneous.  The  verdict  may  have 
been  given  on  one  or  all  of  the  other  defenses. 

Beecher  v.  Dunlap,  52  O.  S.  64. 

See  State,  ex  rel.,  v.  Hills,  94  0.  S.  171. 

National   Union    v.   Rothert,    39    Bull.    143. 

(c)  Where  the  accused  is  acquitted  on  two  defective 
counts,  but  is  convicted  on  a  valid  count,  the  admission  of  im- 
proper evidence  under  the  defective  counts  will  not  be  ground 
for  a  new  trial,  unless  it  appears  from  the  record  that  the  evi- 
dence was  incompetent  under  the  valid  count  and  also  pre- 
judicial to  the  accused. 

Ridenour   v.    State,   38   0.   S.   272. 

(d)  Where  a  person  is  indicted  for  breaking  and  enter- 
ing a  car  with  intent  to  steal  and  for  the  larceny  of  goods, 
and  he  is  acquitted  of  the  breaking  and  entering  and  con- 
victed of  the  larceny  only,  the  judgment  will  not  be  reversed 
because  of  the  admission  of  evidence  to  prove  the  breaking 
and  entering. 

Manson  v.  State,  24  0.  S.  590. 

234.  OFFER  AND  OBJECTION. 

(a)  Evidence  that  is  competent  in  part  and  incompetent 
in  part,  but  offered  as  a  whole,  may  be  excluded.  A  judgment 
will   not  be   reversed   for   the    exclusion    of   evidence,   unless 


303  OBJECTIONS     AND     EXCEPTIONS  §234 

every  material  part  of  the   evidence   was   competent   for   the 
purpose  stated  by  the  party  offering  it. 

Kent  V.  state,  42  0.  S.  426. 

Benedict  v.   State,   44   0.   S.  67n,   687. 

(b)  And  Avhere  evidence  was  admitted  against  a  general 

objection,  the  judgment  will   not  be  reversed  on   the   ground 

that  the  evidence  was  incompetent,  unless  no  material  part  of 

such  evidence  was  admissible  for  any  purpose. 

Kent  V.  State,  42   0.  S.  426. 

Railway  v.  Kolley,  6  C.  C.  155,  3  C.  D.  393. 

Cliapman  v.  Seely,  4  C.  D.  305,  8  C.  C.  179. 

(c)  But  when  evidence  is  received  and  admitted  over  a 
party's  objection,  and  such  evidence  is  altogether  incompetent 
and  irrelevant,  it  is  prejudicial  error;  and  it  is  immaterial 
whether  or  not  he  gave  the  proper  reason  for  his  objection. 

Young  V.   State,   16   C.   D.   747,   6  C.  C.    (N.S.)    53,  56. 

(d)  Even  when  no  ground  of  objection  is  stated,  it  is 
error  to  admit  improper  evidence,  such  as  a  ])rivileged  com- 
munication, when  objection  is  made  to  the  question  and  a 
motion  is  made  to  rule  out  the  answ^er,  and  exception  is  taken 
to  both  rulings. 

Gazette  Co.  v.  Grooms,  21   Bull.  292,   10  O.  D.  R.  489. 

(e)  When  evidence  is  admitted  for  one  purpose  only,  it  is 
the  duty  of  the  court  to  limit  it  to  that  consideration  in  its 
charge  or  otherwise ;  and  on  failure  of  the  court  in  this  re- 
spect the  party  affected  thereby  should  ask  the  court  to  cau- 
tion the  jury  to  limit  its  effect  to  the  purpose  for  which  it  is 
lawfully  applicable.  A  late  case  states  that  it  is  the  duty  of 
the  trial-court  to  instruct  the  jury  at  the  time  such  evidence 
is  received. 

Knight  V.   state,  54  O.   S.   305,  381. 
Circleville  v.   Sohn,    11   C.  D.   193,  20  C.  C.  368. 
Baird  v.  Howard,   51   O.  S.  57,   68. 
Baxter  v.  State,  91   O.  S.   167. 

(f)  A  failure  of  the  trial-judge  to  instruct  the  jury  on  the 
purpose  for  which  certain  evidence  may  be  considered  is 
reversible  error,  even  though  such  instruction  was  not  asked 
for,  when  objection  was  made  to  the  evidence  upon-  the  ground 
that  it  was  not  restricted  to  its  proper  purpose. 

Lebanon    v.    ^c•^^v:^^t/.,    4    O.    .Xpp.    173,   25    C.   C.    (N.S.)    273. 


§235  METZLER'S    OHIO    TRIAL    EVIDENCE  304 

(g)  Whenever  the  introduction  of  evidence  is  objected  to, 
counsel  should  be  specific  in  stating  the  ground  of  his  objec- 
tion [except  when  the  ground  is  obvious].  And  when  a  spe- 
cific objection  is  made,  this,  on  error,  is  a  waiver  of  all  other 
objections. 

Van   Zandt   v.    State,    13   C.   C.    (X.S.)    526. 

Kent   V.    State,    42   0.   S.   426,    430. 

(h)  "Where  evidence  offered  is  competent  for  one  purpose 
and  objection  is  made  on  another  ground,  and  the  party  ob- 
jecting made  no  request  that  the  evidence  be  limited  to  the 
proper  purpose,  he  can  not  in  a  court  of  error  complain  that 
the  trial-court  erred  in  not  limiting  such  evidence. 

Patterson  v.  State,   06  0.  S.  TO. 

(i)  An  objection  to  admitted  testimony  as  to  value  on  the 
ground  of  incompetency  is  not  sufficient  to  sustain  the  claim 
on  review  that  the  witness  had  not  qualified  as  an  expert  on 
values. 

Kinney  v.   Christy,   3  0.  L.   E.  385,   16  0.   D.   715. 

235.  TIME  FOR  OBJECTION. 

(a)  The  general  rule  is  that  to  lay  the  foundation  for  re- 
view%  the  party  objecting  to  the  decision  must  except  at  the 
time  it  is  made.  Where  objection  is  made  at  the  time,  all 
grounds  of  exception  may  be  obviated  by  the  action  of  the 
other  party  or  by  the  consideration  of  the  court.  But  if  the 
parties  acquiesce  in  the  decision  by  proceeding  in  the  trial 
without  objection,  they  are  regarded  as  Avaiving  the  right  to 
except. 

Section    11560.   General    Tofle. 

Bank    v.    Buckin<:!'an!.    12    O.    S.    402,    406. 

State  V.  Kollar,  03   0.   S.   R9.   91. 

(b)  If  no  objection  Avas  made  to  the  introduction  of  oral 

evidence  of  the  contents  of  an  instrument,  it  is  not  error  in 

the  court  to  refuse  to  exclude  such  evidence  after  the  cause 

has  been  argued  to  the  jury.     The  objection  should  have  been 

made  at  the  time  the  questions  were  asked. 

Hummel   v.    State,    17    0.    S.    628. 
Wroe   V.    State,   20   0.    S.   460,   471. 


305  OBJECTIONS    AND    EXCEPTIONS  §235 

(c)  If  a  witness  is  called  to  prove  self-serving  statements 
of  defendant  in  a  conversation,  the  failure  of  the  adverse 
party  to  object  to  the  first  question  does  not  open  the  door 
for  the  proof  of  more  incompetent  evidence  of  the  same  kind, 
to  the  admission  of  which  objection  is  made,  even  thougrh  all 
the  statements  were  made  in  the  same  conversation. 

Forrest  v.  State,  21   0.  S.  641. 

(d)  It  is  not  correct  practice  to  postpone  an  objection  to 

a  question  until  it  develops  what  the  answer  will  be  and  then 

move  to  strike  out  the  answer.    An  objection  to  a  question  is 

too  late  after  the  answer  is  not  what  is  expected. 

Voorlicrs   Co.  v.   Supply  Co.,   12  C.  C.    (N.S.)    243. 
Union  Mill  v.  Packard,  1   C.  C.  76,  1  C.  D.  46. 

(e)  Where,  after  a  question  is  answered  on  direct  examin- 
ation, the  witness  proceeds  to  give  other  evidence  without 
interruption  of  counsel  eonductino'  the  examination,  such 
counsel  will  not  be  heard  to  object  after  he  finds  that  the  vol- 
unteer statement  of  the  witness  is  not  likely  to  benefit  him. 

Banning  v.  Banning,  12  0.  S.  437,  444. 

(f)  But  an  objection  to  a  witness  made  when  he  is  offered 

as  a  witness  and  before  he  is  sworn  is  premature  if  the  Avitness 

is  competent  to  testify  on  any  matter  in  issue.     The  objector 

must  wait  to  see  what  is  proposed  to  be  proved. 

Murdock  v.  IVTcXeely,  1   C.  B.  9,  1   C.  C.   16. 

Meier  v.  Herancourt,   11   A.  L.  R.  46,  6  0.  D.  E.   1164. 

(g)  An  objection  to  the  introduction  of  any  evidence  on 
the  ground  that  the  petition  does  not  state  a  cause  of  action 
does-  not  operate  as  an  objection  to  evidence  thereafter  re- 
ceived in  support  of  an  allegation  w^hich  might  have  been 
eliminated  from  the  petition  by  motion.  Specific  objection 
should  be  made  to  evidence  when  it  is  offered. 

Tuttle  V.  Furi,  22  C.  C.   (N.S.)   388. 

(h)  When  objection  is  made  to  a  preliminary  (iiiestio-\ 
such  as  whether  there  was  a  conversation  on  a  certain  subject, 
the  court  may  overrule  the  objection  even  though  tlie  subject 
is  incompetent.  If  any  part  of  the  conversation  is  tlien  called 
for,  an  objection  to  it  should  be  sustained. 

iloran  v.   State,  5   C.  D.  234,   11   C.  C.  464. 


§236  METZLER'S   OHIO   TRIAL    EVIDENCE  306 

236.  REPEATED  RULINGS. 

(a)  The  repetition  of  a  question  is  properly  refused  after 
it  has  been  answered.  And  when  an  objection  is  made  and  it 
is  overruled  and  the  evidence  admitted,  a  rule  is  thereby 
established ;  and  it  is  not  necessary  for  counsel  to  continue  to 
object  to  the  same  class  of  evidence.  In  such  eases,  some 
courts  assert  that  it  is  impertinent  in  eoansel  to  continue  ob- 
jecting after  the  court  has  ruled. 

Railway  v.  Gilbert.   14  C.  D.   181,  2  C.  C.    (X.S.)    432. 
Railway   v.  Yokes,  5   C,   D.   599,    12  C.   C.   499,   502. 

(b)  When  an  objection  is  made  and  sustained,  and  the 
evidence  is  excluded,  a  rule  is  thereby  established ;  and  it  is 
the  duty  of  the  trial-judge  to  prevent  the  repetition  of  the  in- 
competent question  to  which  objection  has  been  sustained. 

Railway   v.   Pritschau,   69   0.   S.   438, 

(c)  A  statement  by  the  court  that  counsel  has  persistently 
asked  improper  questions,  accompanied  by  a  caution  to  the 
jury  to  disregard  such  questions  and  to  draw  no  inference  as 
to  what  the  answer  would  have  been,  had  the  witness  been 
permitted  to  answer  them,  cures  any  error  because  of  the  mis- 
conduct of  counsel, 

Kornfeld   v.  Kornfeld,   16   C.   C.    (N.S.)    400. 

(d)  There  are  times  Avhen  evidence  must  be  offered  even 
after  a  ruling  against  it.  When  evidence  is  offered  and  prop- 
erly rejected  at  the  time,  and  subsequent  developments  in  the 
case  render  it  admissible,  the  ruling  will  not  be  erroneous 
unless  the  evidence  is  offered  again. 

Dickey   v.   Greenleaf,    38    0.    S.   593,    599. 

(e)  If  evidence  is  offered  that  is  admissible  for  one  pur- 
pose and  it  is  rejected  because  offered  by  counsel  for  another 
purpose,  it  ought  not  to  be  rejected  when  offered  on  the  cor- 
rect ground,  because  of  the  former  mistake  or  misapprehen- 
sion as  to  the  true  principle  of  its  admission. 

Stearns    v.    Cox,    17    Oh.    590. 


307  OBJECTIONS    AND     EXCEPTIONS  §237 

237.  STATEMENT  OF  EXPECTED  PROOF. 

(a)  When  a  question  is  asked  of  a  witness  which  is  ob- 
jected to,  and  the  objection  is  sustained,  the  ruling  will  not  be 
reviewed  on  error,  unless  the  exception  taken  shows  what  it 
was  proposed  to  prove.  The  rule  is  the  same  in  both  civil  and 
criminal  cases. 

Xeff   V.   Cincinnati.    .32   0.    S.   215. 
Bean  v.  Green,   .33   O.   S.   444. 
Hummel  v.  State,   17   0.  S.  62S. 

(b)  When  an  exception  is  taken  to  the  ruling  of  a  court  in 
rejecting  evidence,  it  is  not  necessary  that  the  evidence  should 
be  set  out  in  the  bill  of  exceptions;  it  is  sufficient  if  the  bill 
states  the  facts  which  such  evidence  tends  to  prove.  But  it  is 
not  sufficient  to  bring  up  merely  the  excluded  question  and 
proposed  answer  without  sufficient  other  evidence  to  show 
their  connection  or  relevancy. 

Himrod  Co.  v.  Eailroad,  22  0.  S.  451. 
Coston  V.  Paige,  9  0.  S.  307,  399. 

(c)  The  rule  requiring  a  statement  of  the  expected  proof 
when  evidence  is  excluded  applies  in  all  direct  examiuations 
of  witnesses.  The  rule  must  be  observed  in  offering  evidence 
in  rebuttal  as  well  as  in  chief. 

Shadle  v.   Illimiinatinfr  Co.,    12   C.   D.   37,  22   C.    C.  49. 
^kleeker    v.    Browning,    9    C.    D.    108,    17    C.    C.   54S. 

(d)  But  if  the  question  is  asked  on  cross-examination,  the 
pi-oposed  proof  need  not  be  stated.  The  rule  does  not  apply 
to  strict  cross-examination.  But  Avhere  the  question  indicates 
that  the  matter  proposed  to  be  proved  is  not  proper  cross- 
examination,  the  rule  applies;  and  the  examiner  must  disclose 
what  he  proposes  to  prove  by  the  question. 

Martin   v.  Eldon,   32   0.  S.  282. 
Bean  v.  Green,  33  0.  S.  444,  448. 

(e)  The  rule  does  not  apply  where  a  witness  on  cross- 
examination  is  asked  if  he  has  not  made  statements  inconsist- 
ent with  his  testimony  in  chief,  the  purpose  and  object  of  the 
in(|iiiry  being  sufficiently  manifest  without  sucli  disclosure. 
The  witness  being  adverse,  counsel  cmild  not  Ix'  pi-esumoH  to 
know  what  his  answer  would  be. 

Burt   V.   state,   23   0.   S.   394. 


§238  METZLER'S    OHIO    TRIAL    EVIDENCE  308 

238.   MOTION  TO  RULE  OUT. 

(a)  A  reviewing  court  will  not  determine  whether  admit- 
ted evidence  is  competent  when  no  proper  means  was  exer- 
cised at  the  trial,  by  motion  or  otherwise,  to  have  it  taken 
from  the  jury.  A  motion  to  strike  out,  though  a  common 
form,  is  regarded  as  indefinite  and  improper. 

Telephone   Co.   v.  Jackson.   16   C.  D.   SO.   4   C.   C.    (N.S.)    386. 
Terry  v.  State.  3  C.  C.   (N.S.)   503,  14  C.  D.  111. 

(b)  Where  an  incompetent  witness  is  called  to  testify  in  a 
case,  it  is  not  error  to  permit  his  testimony  to  go  to  the  jury, 
unless  the  record  shows  that  the  opposite  party  objected  to 
his  testifying  or  asked  the  court  to  rule  out  the  evidence. 

Inglebright   v.   Hammond,    19    Oh.   337. 

(c)  Failure  of  a  defendant  to  ask  the  court  to  instruct  the 
jury  to  disregard  evidence  which  was  properly  admitted  as 
against  a  co-defendant  who  was  subsequently  dropped  from 
the  case,  waives  any  error  of  the  court  in  neglecting  to  so  in- 
struct the  jury. 

Morton  v.  Murry,  20  C.  C.    (N.S.)    481. 

(d)  If  evidence  is  admitted  subject  to  objection  or  the 
further  consideration  of  the  court,  and  it  afterward  develops 
that  such  evidence  is  irrelevant  or  incompetent,  the  party  de- 
siring to  object  to  such  evidence  must,  before  the  case  is 
closed,  call  the  attention  of  the  trial-judge  to  such  evidence 
and  ask  that  it  be  ruled  out. 

Tliayer  v.  Luce,  22  O.  S.  fi2. 

Bradstreet  v.   Prons,    11    liull.    117.   0   0.   D.    R.    154. 

Railroad  v.  Ellis,  6  C.  D.  304.  13  C.  C.  704. 

Meier  v.  Hcrancourt.   II   A.  L.  R.  40.  0  0.  D.  R.  llf.4. 

(e)  It  is  not  proper  practice  for  a  party  to  move  that  cer- 
tain testimony  be  ruled  out  on  the  ground  that  his  evidence  in 
reply  to  it  will  show^  that  the  testimony  is  worthless.  The 
evidence  in  reply  should  be  offered  to  the  jury  the  same  as 
other  evidence,  and  not  to  the  court  on  a  motion  to  rule  out. 

Loudenback   v.   Collins,  4   0.   S.   251,  259. 


309  OBJECTIONS    AND     EXCEPTION?  §239 

239.  THE  MOTION  MUST  BE  SPECIFIC. 

(a)  If  it  is  desired  that  evidence  already  given  should  be 
ruled  out,  the  party  should  point  out  what  that  evidence  is, 
not  by  referring  to  it  in  general  terms,  but  by  stating  the  mat- 
ter to  which  objection  is  taken  so  that  it  can  be  ascertained 
with  reasonable  certainty.  A  motion  to  rule  evidence  from  the 
jury  embracing  competent  as  well  as  incompetent  evidence 
should  be  overruled. 

Cincinnati    v.   Cameron,    33   0.   S.   336. 
Van  Zandt  v.  State,  13  C.  C.    (N.S.)    526. 
Morris  v.  Faurot,  21   0.  S.   155. 

(b)  "Where  a  motion  is  made  to  exclude  the  entire  testi- 
mony of  a  witness,  part  only  of  which  is  incompetent,  without 
specifying  any  particular  part  of  the  testimony  objected  to, 
or  disclosing  the  ground  of  objection,  it  is  not  error  in  the 
court  to  overrule  the  motion. 

Westerman   v.  Westerman,   25   0.   S.   500. 

Elstner  v.   Fife,   32   O.   S.   358,   368. 

Finnegan  v.  Sullivan,   18  C.  C.  876,  4  C.  D.  292. 

(c)  "WTiere  the  question  put  to  a  witness  is  competent,  or 
not  objected  to  by  counsel,  and  the  witness  answers,  a  part  of 
which  answ'er  is  competent  and  a  part  incompetent,  a  general 
objection  to  the  whole  answer  is  properly  overruled,  even 
though  there  be  some  objectionable  matter  in  the  answer.  To 
save  the  objector's  rights  he  should  clearly  indicate  the  part 
of  the  answer  to  w'hich  he  objects  and  move  its  exclusion.  If 
the  court  overrules  such  motion,  he  should  then  save  his 
exception. 

State  V.  Lasecki,  90  0.  S.  10. 

Voorliees   Co.  v.   Supply  Co.,   12   C.  C.    (X.S.)    243,  21   C.   D.  557. 

Cireleville  v.   Sohn,   11    C.   D.    193,  20   C.   C.   368. 

Railway  v.  Godwin,  12  C.  D.  537. 

(d)  Where  a  witness  volunteers  a  statement  not  respon- 
sive to  the  question,  a  motion  to  rule  out  such  testimony 
should  be  sustained.  But  a  motion  to  take  from  the  jury  an 
entire  answer  as  unresponsive  is  properly  overruled,  where  a 
part  of  the  answer  is  directly  responsive  and  the  remainder  is 
not  prejudicial. 

Brandon    v.    Railway,    17    C    C.    705,    8   C.   D.    642. 
Railway  v.  Gorsuch,  8   C.  C.    (N.S.)    297,   18   C.  D.  468. 


^240  METZLER'S    OHIO   TRIAL    EVIDENCE  310 

(e)  When  a  proper  question  is  put  to  a  witness  and  it  is 
objected  to  before  it  is  answered,  the  court  will  overrule  the 
objection.  For  this  reason,  when  the  question  is  proper  and 
the  answer  is  improper,  the  party  affected  thereby  should 
move  that  the  answer  be  taken  from  the  jury ;  and  on  failure 
to  do  so,  he  can  not  afterward  raise  the  question, 

Jennings   v.  Haynes,   1    C.  D.   13,   1   C.   C.   22. 

Anderson   v.   Allen,    19    C.    C.    (N.S.)    51. 

Circleville   v.    Sohn,   20    C.    C.    368,    11    C.    D.    103^    106. 

240.  INSTRUCTION  TO  DISREGARD. 

(a)  If  incompetent  evidence  is  admitted,  it  is  error  for  the 
court  to  leave  it  with  the  jury  when  requested  to  rule  it  out. 
The  court  should  upon  request  rule  the  evidence  from  the  jury 
Avith  instructions  to  disregard  it  entirely.  The  effect  of  in- 
competent evidence  once  admitted  can  not  be  done  away  with, 
except  by  such  a  charge  to  the  jury  as  will  enforce  this  rule. 

State  V.  Geiger,  70  0.  S.  400. 
Ilcnkle   Y.   McCliire,   32   0.    S.   202. 

(b)  The  improper  admission  of  evidence  is  not  regarded 

as  constituting  prejudicial  error  where  the  court  subsequently 

excludes   the   evidence   and   directs   the   jury   to   disregard   it. 

And  it  is  not  material  whether  the  evidence  is  excluded   on 

motion  of  the  party  aft'ected  or  by  the  court  sua  sponte. 

Mimms  v.   State,   16  0.  S.  221. 

Klein   v.   Thompson,    19   0.   S.   509,   571. 

Hoppe   V.   Parmalee,    11    C.   D.   24,   20    C.    C.    303. 

Railway  v.  Litz,  6  C.  D.  285,  18  C.  C.  646. 

(c)  Unless  it  is  evident  that  the  jury  failed  to  follow  the 
instructions  given  to  disregard  the  evidence,  or  it  otherwise 
appears  that  prejudice  resulted  therefrom  to  the  party  com- 
plaining, the  judgment  will  not  be  reversed  on  account  of  the 
error  committed  in  admitting  such  evidence. 

Railroad   v.   Criss,   7   C.   D.   632,    15   C.    C.   398. 
Martin  v.   State,   9   C.  D.   621,   17    C.   C.   406. 
McGuire  v.  State,  3  C.  C.  551,  2  C.  D.  318. 

(d)  The  admission  of  incompetent  evidence  in  a  criminal 
case  over  the  objection  of  the  accused  is  cured  by  proper  in- 
structions unless  they  were  disregarded.     And  such  evidence 


311  OBJECTrONS     AND     EXCEPTIONS  §240 

may  be  withdrawn  fi-om  the  jury  at  any  time  before  the  case 
is  finally  submitted. 

Chicko   V.   State,   24   C.   C.    (X.S.)    570. 

(e)  Admission  of  evidence  in  a  case  on  the  promise  of  the 

party  to  make  it  relevant  by  other  evidence,  which  was  not 

done,   may  be   cured  by   directing  the  jury   to   disregard   it 

wholly,  unless  prejudice  is  manifest.     Such  testimony  is  often 

prejudicial,  as  it  must  have  some  effect,  notwithstanding  the 

charge   of  the   court  to   disregard   it   and  the  efforts   of  the 

jurors  to  obey. 

Martin  v.  State,  9  C.  D.  621,  17   C.  C.  40G. 
^Yilson   V.    Barkalow,    11    0.   S.  470,   473. 
See  Preston  v.  Bowers,   13  O.  S.   1,   13. 

(f)  Where   evidence   is  admitted   and   on   motion   is  ruled 

out,  but  the  grounds  of  the  motion  and  the  reason  of  the  court 

for  sustaining  the  same  do  not  appear,  there  is  no  error  in  the 

ruling  of  the  court  if  the  evidence  was  introduced  out  of  its 

order;  for  this  is  a  matter  within  the  discretion  of  the  court. 

Circleville   v.   Solin,    11    C.   D.    193.   20   C.   C.   36S. 
Cf.   Hills   V.   Liulwig,   40   O.    S.    373. 

(g)  A  charge  to  the  jury  to  disregard  certain  incompe- 
tent evidence  cures  error  in  admitting  it,  although  the  instruc- 
tion is  based  on  the  ground  that  it  had  become  immaterial  and 
not  on  the  ground  of  incompetency. 

Trovision    Co.   v.   Limmermaier.   4   C.   D.  240,   8   (".    C.   701. 

(h)  AYhen  a  question  is  asked  which  seems  to  call  for  hear- 
say, objection  may  be  made  on  that  ground ;  and  the  court 
should  permit  the  objecting  party  to  make  a  preliminary  ex- 
amination of  the  witness  as  to  his  source  of  knowledge.  And 
if  his  knowledge  is  hearsay,  his  testimony  should  be  excluded. 
But  if  hearsay  is  not  discovered  until  the  cross-examination, 
it  should  be  withdrawn  from  the  jury. 

Turnpike  Co.  v.  Hester,  12  C.  C.  350,  5  C.  D.  600. 

Toledo  V.  Meinert,    15   C,   C.    (X.S.)    545. 

Ward  V.  Railway,  16  C.  C.   (N.S.)   504,  27  C.  D.  627. 

(1)  If  a  question  is  ruled  out  on  the  objection  of  a  party, 
he  can  not  complain  if  the  court  rules  out  similar  evidence 
already  let  in  on  his  side  against  objection.     When  a  ruling  is 


§241  METZLER'S    OHIO    TRIAL    EVIDENCE  312 

made  at  the  instance  of  a  party,  he  can  not  complain  when  the 
court  withdraws  his  evidence  admitted  contrary  to  such  rul- 
ing; for  the  same  principle  is  applicable  to  both  sides  of  the 
case. 

Powers  V.  Railway,  33  0.  S.  429. 

(j)     Where  the  court  ordered  the  jury  to  disregard  five 

questions  and  answers  in  a  deposition  and  some  of  them  were 

competent,  but  only  one  exception  was  taken  to  the  ruling  on 

all,  it  was  held  that  the  exclusion  was  not  ground  of  reversal. 

Miller  V.  Glcason,   10  C.  D.  20,   IS  C.  C.  374. 

(k)  Where  an  answer  of  a  witness  is  proper  evidence  in  a 
case  but  not  directly  responsive  to  the  question,  the  court  may 
in  its  discretion  refuse  to  take  the  answer  from  the  jury  if 
opportunity  is  given  to  cross-examine. 

Neifeld  V.  state,  3  C.  C.   (N.S.)   551,  13  C.  D.  246. 

Cf.  Nolle  V.  Hill,  2  Bull.  86,  7  0.  D.  R.  297. 

(1)  Where  evidence  was  ruled  out  by  the  trial-court,  and 
a  reviewing  court  holds  that  it  was  improperly  ruled  out,  the 
latter  court  can  not  consider  what  weight  the  jury  would  have 
given  such  evidence  as  set  out  in  the  bill  of  exceptions,  but  it 
must  reverse. 

Penn.  Co.  v.  Mahoney,  22  C.  C.  469,  12  C.  D.  366,  378. 

241.  FORMS  OF  INSTRUCTIONS. 

(a)  When   the   court   states   that   a   document    offered   in 

evidence  is  ruled  out,  and  directs  the  jury  not   to  consider 

"any  testimony  out  of  the  case — that  document  or  anything 

that  relates  to  it,"  the  jury  is  fully  cautioned  with  regard  to  it ; 

and  the  court  has  done  all  that  it  can  fairly  be  asked  to  do. 

Traction  Co.  v.  Jennings,  7  N.  P.  (N.S.)   462,  19  O.  D.  338. 
See  Gilchrist  v.  Transportation  Co.,  21  C.  C.  19,  11  C.  D.  350. 

(b)  Where  the  plaintiff  in  a  personal  injury  case  was 
permitted  over  the  objection  of  the  defendant  to  testify  that 
he  was  a  married  man  and  had  one  child,  it  was  held  that  the 
error  was  cured  by  the  trial-judge's  instruction  that  "no 
damage  should  be  allowed  because  the  plaintiff  is  married  or 
has  a  family." 

Traction  Co.  v.  Ward,  6  C.  C.  (N.S.)  385,  17  C.  D.  761. 


313  OBJECTIONS    AND    EXCEPTIONS  §241 

(c)  Where  evidence  had  been  introduced  concerninfr  an 
injury  not  averred  in  the  petition,  and  counsel  for  plaintiff 
subsequently  asked  the  court  to  instruct  the  jury  to  disregard 
any  claim  made  upon  account  of  that  particular  injury,  the 
court  said  to  the  jury:  "Very  well  grentlemen,  counsel  for 
plaintiff  requests  that  the  testimony  regarding  plaintiff's  deaf- 
ness be  ^vithdrawn  from  your  consideration."  It  was  held 
that  this  was  a  suificient  charge  to  disregard. 
Railway  v.  Stanton,  16  C.  C.  (N.S.)  397. 


CHAPTER  XVII. 

REAL  EVIDENCE. 

242.  Introductory. 

243.  General  rule. 

244.  Illustrations. 

245.  View  by   the  jury — Principles. 

246.  View  in  appropriation  cases. 

247.  View  in  criminal  ca-e-. 

248.  View  in  ditch  cases. 

249.  Physical   examination. 

250.  Photographs  and  diagrams. 

251.  Experiments    before   jury. 

252.  Experiments  outside   of  court. 

242.  INTRODUCTORY. 

(a)  There  are  three  kinds  or  forms  of  evidence:  (1)  real 
evidence;  (2)  oral  evidence:  and  (3)  written  evidence.  These 
three  subjects  will  be  treated  in  the  order  named. 

243.  GENERAL  RULE. 

(a)  When  the  existence  or  observable  qualities  of  a  mate- 
rial object  are  in  issue,  or  are  relevant  thereto,  the  court  may 
allow  the  jury  to  inspect  the  object ;  or  if  it  can  not  be  pro- 
duced, it  may  be  shown  by  maps,  models  or  pictures.  This  is 
Avhat  is  usually  called  real  evidence,  sometimes  autoptic  prefer- 
ence ;  it  includes  all  inspections  except  those  of  documents  and 
other  M^ritings. 

244.  ILLUSTRATIONS. 

(a)  In  a  proceeding  in  bastardy,  the  bastard  child  may  be 
exhibited  to  the  jury  as  evidence  of  alleged  paternity,  and  in 
corroboration  of  the  testimony  of  the  prosecutrix.  But  where 
a  child  tAvo  years  old  is  exhibited  to  the  jury  to  show  resem- 
blance to  the  defendant,  a  reviewing  court  will  be  reluctant  to 
reverse  on  the  weight  of  the  evidence. 

Crow  V.  Jordon,  49  0.  S.  655. 

Richard  v.  State,  ex  rel.,  17  C.  C.  (N.S.)  51. 

314 


315  REAL     EVIDENCE  §244 

(b)  lu  the  record  of  a  conviction  for  selling  liquor  to  a 
minor,  absence  of  proof  that  the  accused  knew  of  the  minority 
is  met  by  the  fact  tliat  the  jury  saw  him.  Under  the  old  law 
on  competency  of  witnesses  on  account  of  color,  the  court  de- 
cided the  degree  of  color  by  inspection. 

Lowther  v.  State,  18  C.  C.   (N.S.)   192. 

Cf.  Grille  V.  State,  9  C.  C.  394,  6  C.  D.  90. 

Gray  v.  State,  4  Oh.  353. 

(e)     Where  there  was  a  dispute  as  to  whether  a  string  in 

evidence   was  or  was  not   part   of   a   wax-end.   the   jury   was* 

allowed  to  decide  it  Ify  inspection.    And  a  knife  was  exhibited 

in  a  case  as  the  instrument  of  the  homicide. 

Martin  v.  State,  16  Oh.  364,  370. 

Wareham  v.  State.  25  0.  S.  601,  605. 

Cf.  Hirsch  V.  Cincinnati,  21  C.  C.   (N.S.)   561,  4. 

(d)  The  fact  that  between  the  first  and  second  trials  of  a 
defendant  who  is  charged  with  murder,  the  blade  of  the  knife 
with  which  it  is  claimed  that  defendant  stabbed  the  deceased 
was  scraped  for  the  purpose  of  obtaining  a  chemical  analysis 
of  the  substance  by  which  such  blade  w^as  discolored,  does  not 
render  such  knife  inadmissible  in  evidence  at  the  second  trial 
because  of  its  changed  condition  if  such  change  and  its  cause 
is  described  in  full. 

Fabian  v.  State.  07  O    S.  184,  1S8. 

(e)  It  is  not  error  in  a  homicide  case  to  exhibit  to  the 
jury  the  mutilated  heart  of  the  deceased  as  showing  the  char- 
acter of  the  incision  therein  as  bearing  on  the  cause  of  death. 
And  a  piece  of  scalp  torn  from  the  head  by  an  accident,  which 
had  been  preserved  in  alcohol,  was  shown  to  the  jury;  and  it 
was  held  not  prejudicial. 

Andv  V.  State,  2  O.  App.  103,  19  C.  C.    (X.S.)    93,  26  C.  D.  146. 
Holland  Co.  v.  Juenpling,  2  O.  App.  20,  21  C.  C.    (N.S.)   593,  25  C.  D. 
398. 

(f)  In  an  action  to  recover  for  property  destroyed  by  fire 
by  a  passing  locomotive,  sparks  picked  up  along  the  track 
may  be  given  in  evidence  if  proved  to  have  come  from  the 
engine  in  question. 

Railway  v.  McKelvey,  5  C.  D.  561,  12  C.  C.  426. 


§245  METZLER'S    OHIO    TRIAL    EVIDENCE  316 

(g)  A  plaster  cast  of  a  defective  sidewalk  was  erroneously 
admitted  in  evidence  where  it  was  taken  fourteen  months 
after  the  accident,  and  there  was  no  evidence  of  its  correct- 
ness or  that  the  sidewalk  was  then  in  the  same  condition. 

Williams  V.  Salem,  33  Bull.   148. 

(Ii)  The  introduction  of  a  section  of  a  wagon  pole,  the 
breaking  of  which  led  to  the  accident,  constitutes  evidence  of 
negligence,  when  an  examination  of  the  part  exhibited  shows 
that  it  had  been  for  a  long  time  in  bad  condition. 

Walton  V.  Ensign,  6  C.  C.   (N.S.)   300,  17  C.  D.  505. 

(i)  The  mere  fact  that  exhibits  offered  in  evidence  are  of 
considerable  bulk  or  weight  does  not  excuse  a  failure  to  attach 
them  to  the  bill  of  exceptions  or  to  properly  mark  them  for 
identification  on  review  on  the  weight  of  the  evidence. 

State  V.  Hinkleman.  13  C.  C.    (X.S.)    .321.  22  C.  D.   1. 

Mulligan  v.  Railway,  8  C.  D.  722,   16  C.  C.  9. 

245.  VIEW  BY  THE  JURY— PRINCIPLES. 

(a)  The  view^  by  the  jury  of  the  property  which  is  the 
subject  of  litigation,  or  of  the  place  where  a  material  fact 
occurred,  which  may  be  ordered  in  a  civil  action  under  Sec- 
tion 11448  of  the  General  Code,  is  solely  for  the  purpose  of 
enabling  them  to  apply  the  evidence  offered  upon  the  trial. 

Macliador  v.  Williams,  54  0.   S.   344. 

Raihvav  v.  Gaffney,  9  C.  C.  32,  6  C.  D.  04. 

White  V.  Smythe,  24  C.  C.   (N.S.)    225,  27  C.  D.  489. 

(b)  So  in  an  action  for  damages  to  abutting  property  on 
account  of  a  change  of  grade  of  a  street,  a  view  is  not  for  pur- 
poses of  evidence,  but  solely  to  apply  the  evidence. 

Columbus  V.  Eidlingmeier,  7   C.   C   136,   3   C.  D.   698. 
Besuden  v.  Hamilton  Co.,  7  C.  C.  237,  4  C.  D.  575. 

(c)  A  justice  may,  in  a  proper  case,  send  a  jury  to  view 
premises,  but  the  jury  should  not  be  sent  if  the  premises  are 
not  in  substantially  the  same  condition  as  when  the  cause  of 
action  arose. 

Sell  V.  Ernsberger,  8  G.  C.  499,  4  C.  D.  100. 


317  REAL    EVIDENCE  §247 

246.  VIEW  IN  APPROPRIATION  CASES. 

(a)  In  an  appropriation  case  the  rule  is  the  same.  The 
impressions  made  on  the  minds  of  the  jurors  by  a  view  of  the 
premises  are  not  of  themselves  evidence  in  the  cause,  and  it  is 
not  error  to  refuse  a  charge  that  the  impressions  from  a  view 
is  evidence,  and  better  evidence  than  the  testimony  of  wit- 
nesses which  is  in  conflict  therewith. 

Railroad  v.  Bolen.  76  O.  S.  376. 

Traction  Co.  v.  Dempsey,  9  N.  P.    (N.S.)    65,  21  O.  D.  694.         , 

(b)  Where  a  jury  in  an  appropriation  case  views  the 
premises  in  question,  and  attorneys  and  representatives  of 
both  parties  call  to  their  attention,  on  such  view,  certain  facts 
pertinent  to  the  case,  a  verdict  based  on  such  facts  will  not  be 
allowed  to  stand. 

Railway  v.  Salt  Co.,  9  C.  C.   (N.S.)    114,  19  C.  D.  110. 

(c)  Where  all  parties  acquiesce  in  a  court's  instructions 
that  the  view  of  the  premises  is  evidence  in  an  appropriation 
case,  it  is  impossible  to  include  all  the  evidence  in  a  bill  of 
exceptions ;  and  a  reviewing  court  can  not,  therefore,  pass 
upon  the  weight  of  the  evidence. 

Traction  Co.  v.  Hutchinson,  23  C.  C.    (N.S.)    58. 

247.  VIEW  IN  CRIMINAL  CASES. 

(a)  The  view  of  the  premises  where  a  crime  has  been  com- 
mitted, provided  for  by  Section  13658  of  the  General  Code, 
is  not  for  the  purpose  of  giving  evidence  to  the  jury, 
i^:t  is  to  enable  them  to  understand  and  apply  the  evidence 
given  in  open  court.  However,  where  at  the  view,  a  juror 
asked  questions  in  regard  to  the  premises,  it  will  not  justify  a 
reversal,  when  it  does  not  appear  that  any  answer  was  made. 

Reighard  v.  State,  22  C.  C.  340,  12  C.  D.  382. 

(b)  Whether  the  view  be  a  part  of  the  criminal,  trial  or 
not,  the  defendant  may  waive  his  privilege  to  accompany  the 
jury;  fnd  it  is  not  error  to  permit  the  jury  to  view  the  prem- 
ises in  the  absence  of  the  defendant  if  he  waives  the  right  or 


§248  METZLER'S    OHIO   TRIAL    EVIDENCE  318 

refuses  to  attend.    The  record  should  show  that  he  was  pres- 
ent or  had  the  privilege  of  being  present. 

Reighard  v.  State,  22  C.  C.  340,  12  C.  D.  382. 

Blythe  v.  State,  47  O.  S.  234. 

Martin  v.  State,  9  C.  D.  621,  17  C.  C.  406. 

Cf.  Hotelling  v.  State,  2  C.  D.  366,  3  C.  C.  630. 

(c)  Where,  upon  a  view  of  the  place  where  the  crime  was 
committed,  counsel  for  the  accused  and  the  prosecuting  attor- 
ney caused  measurements  to  be  made  and  objects  to  be  placed 
as  nearly  as  possible  in  the  relative  positions  they  occupied 
when  the  crime  was  committed,  and  made  experiments  illus- 
trative of  the  manner  in  which  it  may  have  been  done,  the 
accused  being  present  and  at  liberty  to  communicate  freely 
with  his  counsel,  indicates  no  objection  to  such  proceedings, 
he  should  be  deemed  to  have  authorized  the  same. 

Jones  V.  state,  51  0.  S.  331. 

Cf.  Bender  v.  Buehrer,  8  C.  C.  244,  4  C.  D.  507. 

(d)  On  change  of  venue  of  a  criminal  ease,  the  trial-court 
is  authorized  by  Section  13658  of  the  General  Code,  to  send 
the  jury  to  the  county  in  which  the  crime  was  committed  to 
view  the  locus  criminis. 

Jones  V.  state,  51  0.  S.  331. 

248.  VIEW  IN  DITCH  CASES. 

(a)  On  an  appeal  to  the  probate  court  from  the  order  and 
finding  of  a  joint  board  of  county  commissioners  determining 
that  a  proposed  ditch  is  necessary  and  will  be  conducive  to 
the  public  health,  convenience  and  welfare,  the  jury,  in  exam- 
ining and  determining  the  matter  appealed  from,  may,  under 
Section  6474  of  the  General  Code,  consider  in  evidence  facts 
made  known  to  them  personally  from  an  actual  view  of  the 
premises. 

Williams  v.  Loekoman,  46  0.   S.  416. 
Railroad  v.  Commissioners,  63  O.  S.  23. 
Miller  V.  Weber,  1  C.  C.  130,  1  C.  D.  77. 

(b)  It  is  not  error  for  a  probate  court  in  a  ditch  improve- 
ment proceeding  to  refuse  to  send  the  jury  back  for  a  second 
view  of  the  proposed  outlet  at  the  request  of  the  land-owners 
not  satisfied  with  the  first  view. 

Wood  Co.  V.  Shinnew,  10  C.  C.   (N.S.)   554,  20  C.  D.  158. 


319  REAL    EVIDENCE  §249 

(c)  Under  Section  6630  of  the  General  Code,  there  are 
two  legal  sources  of  information  to  the  jury  upon  which 
they  may  predicate  their  finding  and  verdict  as  to  whether  the 
ditch  will  be  conducive  to  the  public  health ;  one  is  the  exam- 
ination made  by  them  and  the  other  is  the  testimony  given  on 
the  further  trial  after  the  view. 

Miller  v.  Weber,  1  C.  C.  130,  1  C.  D.  77,  81. 

249.  PHYSICAL  EXAMINATION. 

(a)  It  is  within  the  discretion  of  a  trial-judge  to  require 
an  adverse  party  to  submit  to  physical  examination ;  and  the 
physician  making  such  examination  can  not  claim  privilege, 
but  may  be  required  to  testify  as  to  the  condition  of  said 
party. 

Sucher  v.  Burger,  13  N.  P.   (N.S.)    161,  22  0.  D.  385. 

(b)  In  an  action  to  recover  for  personal  injuries,  caused 
by  the  negligence  of  the  defendant,  the  court  has  power  to 
require  the  plaintiff  to  submit  his  person  to  an  examination 
by  physicians  or  surgeons,  when  necessary  to  ascertain  the 
nature  and  extent  of  the  injury.  On  the  refusal  of  the  plain- 
tiff to  comply  with  such  order,  when  properly  made,  the  court 
may  dismiss  the  action,  or  refuse  to  allow  the  plaintiff  to  give 
evidence  to  establish  the  injury. 

Turnpike  Co.  v.  Baily,  37  O.  S.  104. 

(c)  The  refusal  of  the  court  to  order  such  an  examination 
of  the  plaintiff  will  not  be  presumed  to  have  been  made  on  the 
ground  of  a  want  of  power  in  the  court  to  make  the  order; 
but,  in  the  absence  of  any  showing  to  the  contrary,  on  the 
ground  that,  under  the  circumstances,  the  order  ought  not  to 
have  been  granted. 

Turnpike  Co.  v.  Baily,  37  0.  S.  104. 

(d)  The  application  for  such  order  ought  to  be  so  made, 
as  not  unnecessarily  to  prolong  the  trial,  or  to  prejudice  the 
plaintiff  in  proving  his  case.  Hence,  where  the  application  is 
not  made  until  after  the  close  of  the  plaintiff's  pvidenee  in 
chief  and  the  commencement  of  the  introduction  of  the  de- 
fendant's evidence,  and  no  reason  is  shown  for  the  delay  in 


§250  METZLER'S   OHIO   TRIAL    EVIDENCE  320 

making  the  application,  it  may  be  refused  on  that  ground.  It 
would  be  unjust  to  the  plaintiff  to  require  him  to  furnish  such 
evidence  against  himself  after  his  case  is  closed,  and  to  which 
evidence  he  could  not  reply  except  by  a  successful  appeal  to 
the  discretion  of  the  court. 

Turnpike  Co.  v.  Baily,  37  0.  S.  104,  108. 

(e)  It  is  not  error  in  such  a  case  for  the  court  to  refuse  to 
charge  the  jury  that  the  refusal  of  the  plaintiff  at  any  time 
after  the  close  of  the  testimony  on  his  behalf  to  allow  an  ex- 
amination of  his  person  touching  the  injury  by  any  competent 
physician  and  surgeon,  affords  a  presumption  against  the 
claim  of  the  plaintiff  as  to  the  character  and  extent  of  the 
injury. 

Turnpike  Co.  v.  Baily,  37  0.  S.  104. 

(f)  In  an  action  to  recover  damages  for  a  personal  injury, 
there  is  no  valid  objection  to  the  exhibition  of  the  injured 
part  of  plaintiff's  body  to  the  surgeon  called  to  testify  on  be- 
half of  plaintiff  and  in  the  presence  of  the  jury ;  and  this  is 
the  rule,  although  there  is  no  external  and  visible  injury. 

Street  Railway  v.  Findley,  46  Bull.  217. 

(g)  "Where  the  defense  of  physical  incapacity  of  the  plain- 
tiff is  asserted  in  an  action  for  breach  of  promise  to  marry,  it 
is  within  the  discretion  of  the  trial-judge  to  require  the  plain- 
tiff to  submit  to  a  physical  examination. 

Sucher  v.  Burger,  13  N.  P.   (N.S.)    161,  22  0.  D.  385. 

(h)  A  court  can  not  order  a  physical  examination  of  an 
accused;  but  when  the  defendant,  while  confined  in  jail,  sub- 
mits without  objection  to  a  physical  examination  on  behalf  of 
the  state,  evidence  of  the  result  of  such  examination  may  be 
admitted  in  evidence. 

Jones  V.  state,  20  C.  C.    (N.S.)   542,  4. 

Angeloff  V.  State,  91  O.  S.  361,  3. 

250.  PHOTOGRAPHS  AND  DIAGRAMS. 

(a)  A  photograph  may  be  admitted  in  evidence  when  it 
appears  to  have  been  accurately  taken,  and  is  proved  to  be  a 
correct  representation  of  the  subject  in  controversy  or  of  some 


321  REAL    EVIDENCE  §250 

subject  incident  to  it,  which  subject  can  not  be  produced,  and 

the  photograph  is  of  such  a  nature  as  to  throw  light  upon  the 

disputed  point. 

Railway  v.  DeOnzo,  87  0.  S.  100. 

Varner'  v.  Varner,   16   C.  C.  386,  9  C.  D.  273,  276. 

(b)  A  photograph  of  premises  where  an  accident  occurred 
which  appears  to  be  substantially  correct  and  which  is  used 
by  witnes.ses  on  both  sides  in  describing  such  premises  in  the 
presence  of  the  jury,  and  introduced  in  evidence  and  submit- 
ted to  the  jury  as  an  exhibit,  must  be  regarded  as  evidence, 
and  not  merely  upon  the  footing  of  a  view  of  premises  by  a 
jury ;  and  it  must  be  made  a  part  of  the  bill  of  exceptions. 

Hohly  V.  Sheely,  11  CD.  678,  21  C.  C.  484. 

Cf.  Eailroad  v."  Waterworth,  11  C.  D.  621,  21  C.  C.  495. 

Coal  Co.  V.  Moherman,  9  C.  C.  544,  6  C.  D.  437,  440. 

(c)  In  an  action  upon  a  policy  of  insurance  against  loss 
by  lightning  where  the  issue  is  whether  the  building  was  de- 
stroyed by  lightning  or  by  a  windstorm,  it  is  not  reversible 
error  for  the  trial-court  to  exclude  photographs  which  repre- 
sent collapsed  buildings  situated  many  squares  away  from  the 
property  involved  in  the  ease  on  trial,  especially  if  the  record 
does  not  show  that  such  buildings  were  in  the  path  of  this 
particular  windstorm. 

Insurance  Co.  v.  Ice  Manufacturing  Co.,  28  0.  C.  A.  273,  30  C.  D.  167. 

(d)  A  photograph  of  a  testator,  taken  at  or  near  the  time 
his  will  was  executed,  may  be  a  useful  and  competent  item  of 
evidence  in  an  action  to  set  aside  the  will ;  but  it  is  not  preju- 
dicial error  to  sustain  an  objection  to  the  introduction  of  such 
a  photograph  which  was  taken  eight  or  nine  years  prior  to  the 
execution  of  the  will  or  codicil  which  is  under  attack. 

Eogers  v.  Monroe,  26  C.  C.   (NS.)   193. 

Cf.  Varner  v.  Varner,  16  C.  C.  386,  9  C.  D.  273. 

Hohly  V.  Sheely,  21  C.  C.  484,  11  CD.  678,  83. 

(e)  A  photograph  of  the  testator  is  competent  in  a  will 
case,  where  evidence  has  been  introduced  as  to  his  slovenly 
appearance  which  is  denied  by  the  defense;  and  the  authen- 
ticity of  the  photograph  has  been  established  and  also  the 
fact  that  \:  resemblod  the  testator  as  he  appeared  at  about 
the  time  of  the  execution  of  the  will. 

Ware  v.  Rlocum,  26  C  C  (N.S.)  317,  27  C  D.  348. 

METZLEU'S   TRIAL   EV. — 11 


^250  METZLER'S    OHIO   TRIAL    EVIDENCE  322 

(f)  When  a  bill  of  exceptions  contains  the  film  of  a  mov- 
ing picture  which  was  reproduced  in  the  trial-court,  a  review- 
ing court  has  power  to  order  a  reproduction  of  the  same  be- 
fore it,  by  1  competent  expert,  this  course  being  a  method  of 
unfolding  the  exhibit  so  as  to  make  it  visible  to  the  review- 
ing court. 

Duncan  v.  Kiger,  6  0.  App.  57,  27  0.  C.  A.  422,  28  C.  D.  299. 

(g)  Photographs  by  the  Roentgen  or  X-ray  process  are 

admissible  to  show  the  nature  of  an  injury.    But  they  should 

be  properly  identified  as  those  taken  of  the  plaintiff  before 

they  can  be  admitted  as  evidence. 

Railway  v.  Hobart,  13  C.  C.    (N.S.)   592,  22  C.  D.  154. 
Tish  V.  Welker,  5  O.  D.  725,  7  N.  P.  472. 

(h)  Exhibits  of  X-ray  pictures  which  were  offered  in  evi- 
dence and  as  to  which  a  witness  was  examined  and  cross-ex- 
amined, and  which  were  shown  to  the  jury  and  referred  to  by 
counsel  on  both  sides  as  being  in  evidence,  will  be  regarded  by 
a  reviewing  court  the  same  as  if  formally  offered  in  evidence, 
although  not  marked  as  exhibits  in  the  case.  But  absence  of 
the  exhibits  would  probably  prevent  a  reviewing  court  from 
considering  the  question  of  the  weight  of  the  evidence. 

Commissioners  v.  English,  19  C.  C.    (N.S.)    566,  25  C.  D.  246. 

(1)  A  picture  of  a  device  need  not  be  accurate  or  exact. 
If  it  shows  some  matter  directly  bearing  upon  the  subject 
under  investigation  and  will  aid  the  jury,  it  may  be  admitted 
with  an  explanation  of  how  it  differs  from  that  which  is  being 
investigated. 

Provision  Co.  v.  Hague,  20  C.  C.   (N.S.)   34. 

(j)  In  a  personal  injury  case,  the  plaintiff  may,  in  order 
to  show  that  he  had  skill  as  an  acrobat  before  his  injury,  in- 
troduce pictures  or  diagrams  which  are  proven  to  correctly 
represent  his  feats  and  are  such  as  will  aid  the  jury  to  under- 
stand the  testimony  describing  such  feats. 

Railway  v.  DeOnzo,  87  0.  S.   109. 

(k)  In  an  appropriation  proceeding,  the  land-owner  may 
show  that  the  land  sought  to  be  appropriated  ha-s  been  sub- 
divided into  lots  for  sale,  and  is  more  valuable  than  if  sold  by 


323  REAL     EVIDENCE  §251 

the  acre,  or  for  other  purposes ;  and  in  that  connection  an  un- 
recorded plat  or  diagram  showing  the  manner  in  which  the 
tract  has  been  divided  and  how  such  subdivision  is  affected  by 
the  appropriation  is  admissible,  not  as  a  valid  town  plat,  but 
as  a  scheme  or  plan  for  sale  affecting  the  value  of  the  property. 

Railway  v.  Longwortli,   30  0.  S.   108. 
Railroad  v.  Perkins,  22  C.  C.  630.  12  C.  D.  676. 
See  Daugherty  v.  O'Connell,  12  Bull.  261. 

251.  EXPERIMENTS  BEFORE  JURY. 

(a)  "Where,  by  consent  of  both  parties,  the  jury  is  sent  to 
the  place  of  accident  to  witness  experiments  by  running  a 
train  over  the  crossing  under  conditions  practically  the  same 
as  at  the  time  of  the  accident,  the  information  so  obtained  is 
evidence;  and  a  charge  to  that  effect  is  proper.  The  experi- 
ments were  necessarily  of  the  same  probative  character  as  if 
made  in  open  court. 

Schweinfurth  v.  Railway,  60  0.  S.  215. 

Cf.  Railway  v.  Hudson,  22  C.  C.  586,  12  C.  D.  661. 

(b)  The  refusal  of  the  court  to  allow  such  an  experiment 
to  be  made  in  the  presence  of  the  jury,  but  without  the  con- 
sent of  both  parties,  is  not  error. 

Railway  v.  Parker,  9  C.  C.   (N.S.)   28,  19  C.  D.  1. 
Schweinfurth   v.  Railway,  60  0.  S.  215,  229. 
Railroad  v.  Bolen,  76  0.   S.  376,  391. 

(c)  It  is  competent  for  the  parties  by  agreement  to  exhibit 
to  the  jury,  when  viewing  premises,  the  operation  of  the  ma- 
chinery by  which  the  injury  was  occasioned.  And  in  an  ac- 
tion by  an  employe  on  account  of  injuries  received,  it  is  com- 
petent to  offer  in  evidence  for  illustrative  purposes  a  model 
substantially  representing  the  main  parts  of  the  machine  in 
which  he  was  injured. 

Devereaux  v.  Thornton,  4  Bull.  355,  4   O.   D.   R.   449. 

Reeves  Bros.  Co.  v.  Cochli,  6  0.  App.  32,  26  C.  C.  (N.S.)  372,  28  C.  D.  397. 

(d)  It  is  competent  to  admit  a  dictograpli  in  evidence 
with  an  explanation  of  the  scientific  principles  upon  which  it 
operates  and  a  demonstration  of  the  instrument  ir.  operation, 
notwithstanding  the  one  so  used  is  not  the  identical  instru- 
ment used  in  the  detection  of  the  defendant. 

Andrews  v.  State,  15  C.  C.   (N.S.)    241,  23  C.  D.  564. 


§252  METZLER'S    OHIO   TRIAL    EVIDENCE  324 

(e)  As  to  what  is  a  sufficient  bill  of  exceptions  for  review- 
on  the  weight  of  evidence,  when  illustrations  and  demonstra- 
tions by  models  of  machinery  were  made  before  the  jury,  see 
the  case  cited  below,  which  was  remanded  by  the  supreme 
court  to  the  circuit  court  with  directions  to  consider  the  bill. 
(75  0.  S.  608.) 

Rubber  Co.  v.  McCKirg,  6  C.  C.    (N.S.)    556,  17  C.  D.  493. 

252.  EXPERIMENTS  OUTSIDE  OF  COURT. 

(a)  A  person  shot  at  through  a  window  having  testified 
to  identifying  his  assailant  by  the  pistol  flash,  and  other  wit- 
nesses having  testified  to  experiments  at  the  same  window 
with  pistol  flashes  to  show  the  possibility  of  such  identifica- 
tion, the  prisoner  is  entitled  to  show  similar  experiments  with 
different  results,  made  in  another  place  but  like  circumstances. 

Smith  V.  State,  2  0.  S.  511. 

(b)  In  an  action  for  personal  injuries,   evidence   in  the 

nature  of  the  results  of  an  experiment  with  the  same  kind  of 

a  train  at  the  same  place   and  with  a  similar  crew,   is  not 

demonstrative  or  controlling  evidence,  particularly  where  the 

conditions  are  not  exactly  the  same. 

Railway  v.  Hudson,  22  C.  C.  586,  12  C.  D.  661. 
Cf.  Schweinfurth  v.  Railway,  60  0.  S.  215. 


CHAPTER  XVIII. 

WITNESSES. 

25o.  Modes  of  taking  testimony. 
254.  Tes-timony  by  aflidavit. 
"255.  Testimony  by  deposition. 
2o6.  Exceptions   to  depositions. 

257.  Power  of  notary   taking  depositions. 

258.  Xumber  of  witnesses. 

259.  Testimony   of   accomplices. 

260.  Either  of  two  witnesses. 

261.  Separation  of  witnesses. 
2G2.  Limitation   of   number. 

253.  MODES  OF  TAKING  TESTIMONY. 

(a)  The  testimony  of  witnesses  maj'  be  taken  (1)  by  affi- 
davit, (2)  by  deposition,  or  (3)  by  oral  examination.  An 
affidavit  is  a  written  declaration  under  oatli  made  -without 
notice  to  the  adverse  party ;  a  deposition  is  a  written  declara- 
tion under  oath,  made  upon  notice  to  the  adverse  party ;  and 
oral  testimony  is  that  delivered  from  the  lips  of  the  witness. 

Sections    11521    and    11522,   General    Co:;o. 

(b)  The  general  and  most  satisfactory  mode  of  presenting 
evidence,  not  documentary,  is  by  the  testimony  of  witnesses 
who  appear  in  court  so  that  an  opportunity  is  afforded  for 
cross-examination,  and  some  helpful  inferences  may  be  drawn 
fiom  the  a]ipearance  and  manner  of  the  witness;  a  less  satis- 
factory mode  is  by  deposition  where  there  is  opportunity  for 
cross-examination,  although  the  witnesses  do  not  ajij^ear  in 
court;  and  the  least  satisfactory  mode  is  by  affidavit  where 
there  is  neither  the  appearance  of  witnesses  nor  an  oppor- 
tunity for  cross-examination. 

State  V.  Budd,  65  0.  S.  1,  5. 

C54.  TESTIMONY  BY  AFFIDAVIT. 

(a)     An    affidavit   may   be   used    lo    vorify    a    i)loa(liiig.    to 
jjrove  the  service  of  the  summons,  notice,  or  other  process  in 
325 


§254  METZLER'S    OHIO   TRIAL    EVIDENCE  326 

an  action ;  or  to  obtain  a  provisional  remedy,  an  examination 

of  a  witness,  a  stay  of  proceedings,  or  npon  motion,  and  in 

any  other  case  permitted  by  laM\     An  affidavit  must  contain 

a  full  statement  of  evidential  facts,  from  which  the  court  may 

draw  its  own  conclusion. 

Section    11523,    General    Code. 

Brennen   v.   Cist,   9   0.   D.    18,   6   X.   P.   1. 

(b)  Affidavits  may  be  used  only  in  matters  incidental,  and 
not  for  the  purpose  of  trying  issues  which  the  parties  are 
entitled  to  have  submitted  to  a  jury.  In  jury  cases,  the  issues 
can  not  be  tried  upon  affidavits  even  with  the  consent  of  the 
parties. 

Robinson   v.   Harrison,   C   0.   D.   701,   7   X.   P.   273. 

(c)  Where  an  alleged  settlement  and  payment  of  a  judg- 
ment sought  to  be  reversed  on  error  is  denied,  an  issue  is 
made  which  can  not  be  properly  tried  on  affidavits.  Such 
issue  sheuld  be  made  by  jiroper  pleadings,  and  trial  should  be 
had  upon  evidence. 

Glass  Co.  V.  Tillyer,   10  C.  D.  300,  1!)  C.  C.  635. 

(d)  Proceedings  in  contempt  are  not  provisional  remedies, 
but  are  special  proceedings.  The  statute  contemplates  a  trial 
on  such  evidence  as  is  competent  in  ordinary  trials  before  the 
court ;  and  affidavits  can  not  be  used. 

Effinger  v.  State,  11  C.  C.  389,  5  C.  D.  408. 

(e)  The  affidavit  of  a  witness  to  the  execution  of  a  will 

made  in  connection  with  the  admission  of  the  will  to  probate, 

is  not  competent  in  a  suit  to  break  the  will,  where  it  does  not 

appear  that  the  witness  is  prevented  by  death  or  otherwise 

from   being   present.      The   statute   provides  that    a    certified 

copy  of  the  testimony  of  such  of  the  witnesses  examined  upon 

the  probate  as  are  out  of  the  jurisdiction  of  the  court,  dead  or 

have  become  incompetent  since  the  probate,  shall  be  admitted 

in  evidence  on  the  trial. 

Kettemann  v.  Metzger,  3  C.  C.   (X.S.)   224,  13  C.  I).  61. 
Section  12084,  General   Code. 

(f)  Although  the  statute  permits  the  use  of  affidavits 
upon  the  hearing  of  a  motion  to  dissolve  an  injunction  before 


327  WITNESSES  §255 

a  judge  of  the  common  pleas  court  sitting  in  chambers,  the 
oral  testimony  of  Avitnesses  is  competent  upon  a  hearing  of 
that  character. 

State  V.  Budd,  Go  0.  S.   1. 

255.  TESTIMONY  BY  DEPOSITION. 

(a)  A  deposition  may  be  taken  at  any  time  after  service 
of  summons  upon  the  defendant  in  the  action,  but  it  can  be 
used  on  the  trial  only  in  the  cases  prescribed  in  Section  11525 
of  the  General  Code;  and  the  deposition  of  any  witness, 
whether  a  party  to  the  action  or  not,  may  be  so  taken. 

See  Section  llo26.  General  Code. 

In  re  Rauh,  65  O.  S.  128. 

Meader  v.  Toot,  11   C.  C.  81,  5  C.  D.  61. 

(b)  The  deposition  of  a  witness  may  be  used  only  when  it 
is  made  to  appear  to  the  satisfaction  of  the  court  that  he  does 
not  reside  in,  or  is  absent  from,  the  county  where  the  action 
or  proceeding  is  pending,  or,  by  change  of  venue,  is  sent  for 
trial;  or  that  he  is  dead,  or  from  age,  infirmity,  or  imprison- 
ment, is  unable  to  attend  court;  or  that  the  testimony  is  re- 
quired voon  a  motion,  or  where  the  oral  examination  of  the 
witness  is  not  required. 

Section   11525,   General   Code. 

(c)  If  specific  objection  is  made,  a  mere  professional  state- 
ment of  counsel  had  better  not  be  taken  to  prove  that  a  resi- 
dent witness,  whose  deposition  is  offered,  is  sick  and  unable  to 
attend;  but  if  such  proof  is  allowed,  an  objection  to  the  ad- 
mission of  the  deposition  does  not  go  to  the  statement  of 
counsel,  and  the  mode  of  proof  is  therefore  waived. 

Murdock  v.  McXeely,   1   C.  C.   16,  1   C.  D.  0. 

(d)  Testimony  taken  in  an  action  or  ju-oceeding.  on  tlie 
order  of  a  court,  by  a  referee,  master  commissioner,  or  special 
master  commissioner,  subscribed  by  the  witness,  and  reported 
to  the  court  by  the  officer,  may  be  used  as  a  deposition  taken 
in  the  case. 

Section   11527,  Gon<THl  Code. 

Zimmerman   v.    Grotenkcmper,   6    0.    D.    K.    832,    8   A.   L.    Rec.    364. 


§255  METZLER'S    OHIO   TRIAL    EVIDENCE  328 

(e)  A  deposition  may  be  read  in  any  stage  of  the  action 
or  proceeding  or  in  any  other  action  or  proceeding  upon  the 
same  matter  between  the  same  parties,  subject,  however,  to 
such  exceptions  as  are  taken  thereto  under  the  provisions  of 
the  statutes.     (The  cases  cited  below  state  the  old  law.) 

Section   11540,  General   Code. 
Slieplierd  v.  Willis,   19  Oh.   142. 
O'Harra  v.   Hunt,   19  Oh.   460. 

(f)  Depositions  taken  by  the  plaintiff  in  an  action  for 
damages  for  personal  injuries  may  be  read  by  the  administra- 
tor or  executor  of  the  estate  of  the  plaintiff  in  such  action  for 
personal  injuries  against  the  same  defendant  or  defendants,  in 
any  action  for  damages  or  wrongfully  caused  death  resulting 
from  the  same  personal  injuries,  so  far  as  such  depositions 
may  be  relevant  to  the  issues  in  the  action  for  damages  or 
wrongfully  caused  death. 

Section    11540-1,   General   Code. 

(g)  The  testimony  of  a  witness  taken  before  a  master 
commissioner,  reduced  to  writing  and  signed  by  himself  is, 
after  the  decease  of  such  witness,  admissible  in  any  subse- 
quent trial  of  the  case  in  court. 

Bonnet  v.  Dickson,  14  0.  S.  434. 

(h)  Wlien  fin  issue  of  fact  is  joined  upon  an  indictment 
and  a  material  witness  for  the  defendant  or  for  the  state  re- 
sides out  of  the  state,  or  residing  within  the  state,  is  sick  or 
infirm  or  about  to  leave  the  state  or  is  confined  in  prison,  the 
court  may  grant  a  commission  to  take  the  deposition  of  such 
witness  upon  application  in  writing. 

See  Section   13608,  ot  seq..  General  Code. 

(i)  A  deposition  taken  by  one  party  may  be  used  by  the 
other.  Where  the  deposition  of  a  M-itness  is  taken  by  the 
plaintiff  upon  notice  given,  and  the  same  is  regularly  tiled 
M-ith  the  clerk  of  court,  it  thereby  becomes  a  part  of  the 
papers  in  the  case,  and  may  be  used  in  evidence  by  the  defend- 
ant, although  no  cross-examination  of  the  witness  was  had. 
And  if  a  party  reads  part  of  his  examination,  the  adverse 
party  may  read  the  rest. 

Andrews  v.  Watson.  12  C.  D.  6<^6. 

Straw  V.  Dye,  2  W.  L.  M.  3PS.  2  0.  D.  R.  312. 

Despatch  Line  v.  Glenny,  41  O.  S.  166,  177. 


329  (A^ITNESSES  §256 

256.  EXCEPTIONS  TO  DEPOSITIONS. 

(a)  Exceptions  to   depositions  shall   be   in   writing,   shall 

specify  the  grounds  of  objection,  and  be  filed  with  the  papers 

in  the  case.     No  exception   other   than   for  incompetency   or 

irrelevancy  shall  be  regarded,  unless  made  and  filed  before  the 

commencement  of  the  trial. 

Sections  llo46  and   11;")47.  General  Code, 
(owan  V.  Ladd,  2  0.  S.  .322. 
Ash   V.  Marlow,  20  Oh.    119. 

(b)  On  motion  of  either  party,  the  court  shall  hear  and 
decide  questions  arising  on  exceptions  to  depositions  before 
the  commencement  of  the  trial.  Errors  of  the  court  in  its  de- 
cision upon  exceptions  to  depositions  are  waived  unless  ex- 
cepted to. 

Sections  11548  and  11549,  General  Code. 

(c)  A  Avaiver  of  objection  to  the  competency  of  a  witness 
so  as  to  allow  his  deposition  to  be  taken  and  used  in  a  cause, 
is  a  waiver  during  the  Avhole  progress  of  the  cause,  and  the 
objection  can  not  be  insisted  on  when  the  witness  is  called  to 
give  a  second  deposition  in  the  same  cause. 

Choteau  v.  Thompson,  3  0.  S.  424. 

(d)  An  objection  to  a  question  in  a  deposition  on  the 
ground  that  it  is  leading,  is  an  objection  to  the  form,  and 
should  be  made  at  the  time  the  question  is  asked ;  but  if  not 
made  then  or  at  a  proper  time  before  trial,  it  will  be  taken  to 
have  been  waived. 

Crowell  V.  Bank,  3  0.  S.  406. 

(e)  "Where,  after  a  deposition  was  taken,  new  parties 
were  made,  and  they  filed  no  exceptions  to  the  deposition  at 
any  time,  and  on  the  trial  objected  to  it  only  on  the  ground 
of  incompetency,  they  waived  the  objection  that  they  had  no 
notice  of  the  taking  of  the  deposition  as  required  by  Section 
11534  of  the  General  Code. 

Ryan  v   O'Connor,  41  0.  S.  368. 

(f)  On  exceptions  to  depositions  taken  on  behalf  of  the 
defendant  in  a  criminal  case  on  interrogatories,  matter  in  an 
answer  entirely  irresponsive  to  a  question  must  be  excluded, 


§257  METZLER'S    OHIO    TRIAL    EVIDENCE  330 

■because  the  state  could  not  anticipate  and  frame  cross-inter- 
rogatories to  test  their  truth. 

State  V.  Finney,  1  Bull.  30,  7  0.  D.  R.  22. 

(g)  It  is  error  to  permit  counsel  to  read  in  argument  to 
the  jury  from  a  deposition  taken  in  the  case  but  not  put  in 
evidence.  And  it  is  error  to  let  such  deposition  go  to  the  jury- 
room  ;  and  when  it  is  difficult  to  say  what  degree  of  influence 
the  testimony  may  have  had  upon  the  jury,  a  case  will  be  re- 
versed for  such  error. 

Dew  V.  Eeid,  52  0.  S.  519. 

Bronson  v.  Metcalf,  4  W.  L.  G.  115,  1   Disney,  21. 

257.  POWER  OF  NOTARY  TAKING  DEPOSITIONS. 

(a)  A  notary  public  or  other  officer  in  taking  depositions 
has  the  power  to  commit  a  witness  to  the  jail  of  the  county 
for  refusing  to  answer  a  question.  This  power  is  not  judicial 
in  the  sense  of  the  constitution  which  confers  all  judicial 
power  upon  the  courts  of  the  state. 

DeCamp  v.  Archibald,  50  0.  S.  618. 

Ex  par,te  Woodworth,  6  O.  D.  19,  29  Bull.  315. 

Burnside  v.  Dewstoe,   15  Bull.  197,  9  0.  D.  R.  589. 

(b)  AA'here  the  question  propounded  involves  no  question 
of  privilege  on  the  part  of  the  witness,  it  is  his  duty  to  an- 
swer if  ordered  by  the  notary  to  do  so.  But  there  is  no  con- 
tempt until  the  notary  makes  an  order.  Eefusal  to  answer  a 
question  put  by  the  attorney,  the  notary  being  silent,  is  no 
contempt. 

DeCamp  v.  Archibald,  50  0.  S.  618. 

Burnside  v.  Dewstoe,   15  Bull.   197,  9  0.  D.  R.  589. 

(c)  The  general  rule  is  that  the  question  of  competency  i& 
a  matter  for  the  determination  of  the  court  on  the  trial  of  the 
action  in  which  the  evidence  is  taken;  and  if  the  witness  re. 
fuses  to  answeT-  when  ordered,  he  may  be  committed  as  a  con- 
tumacious witness. 

DeCamp  v.  Archibald,  50  O.  S.  618. 

(d)  A  subpoena  issued  by  a  notary  public  for  a  witness  to 
attend  and  testify  in  a  deposition  before  the  notary  may  con- 


331  WITNESSES  §  257 

tain   a    clause   directing   the   witness   to   bring   with   him    any 

book,  -writing  or  other  thing  under  his  control,  which  he  may 

be  compelled  to  produce  as  evidence ;  and  for  disobedience  of 

such  subpoena,  the  notarj'  public  has  the  power  to  punish  the 

witness  for  contempt  by  im]n-isonment. 

Tn  re  Eanli.  65  0.  S.   128. 

Woods  V.  Altschul,   12  C.  D.  SOO,  22  C.  C.  560. 

(e)  A  deposition  of  a  party  can  be  taken  to  be  used  on  a 
motion  for  appointment  of  a  receiver,  though  the  party  re- 
sides in  the  jurisdiction ;  hence,  the  party  can  be  compelled  to 
answer  the  questions  put  to  him. 

Robinson  v.  McConncll,  10  C.  D.  797,   10  C.   C.  710. 

(f)  The  regular  mode  of  obtaining  the  opinion  of  the 
court  is  for  the  notary  to  commit  the  witness  for  contempt. 
The  witness  may  then  make  an  application  for  his  release. 
However,  notaries  are  officers  of  the  court  in  such  eases,  and 
there  would  seem  to  be  no  reason  why  the  notary  may  not 
consult  the  court  and  obtain  an  opinion  as  to  the  relevancy  or 
competency  of  a  question  which  the  witness  has  refused  to 
ansAver. 

Shaw  V.  Installation  Co.,  17  Bull.  274,  9  0.  D.  P..  SOO. 
Thomas  v.  Beebe,  8  0.  D.  231,  5  N.  P.  32. 
Cf.  In  re  Miller,  8  N.  P.  142,  11  0.  D.  GO. 

(g)  At  the  hearing  of  a  writ  of  habeas  corpus,  testimony 
may  be  introduced  by  the  petitioner  showing  that  the  ques- 
tion asked  by  the  notary  was  either  irrelevant  or  privileged, 
the  notary  under  the  Ohio  rule  not  being  competent  to  pass 
thereon. 

In  re  Goode,  3   0.  L.  R.  401.   16  O.   D.  404. 

(h)  A  witness  whose  deposition  is  being  taken  before  an 
officer  may  refuse  to  testify  to  facts  not  relevant  to  the  issues 
in  the  case  in  which  the  deposition  is  to  be  read,  if  the  dis- 
closure of  such  irrelevant  facts  would  be  injurious  to  the  busi- 
ness of  the  witness ;  and,  if  imprisoned  by  the  officer  for  such 
refusal,  he  may  be  discharged  on  habeas  corpus.  And  the 
pleadings  in  the  action  wherein  the  deposition  was  taken  are 
competent  on  the  question  of  relevancy. 

Ex  parte  Jcnninfra,  60  0.  S.  310. 

E.K  parte  Turner,  8  N.  P.  241.  11  O.  D.  251. 

In  re  Reillv,  7  O.  L.  R.  334,  54   Bull.  382. 


§258  METZLER'S    OHIO    TRIAL    EVIDENCE  332 

(i)  A  witness  whose  deposition  has  been  taken  before  an 
officer  can  not  be  committed  for  contempt  in  refusing  to  sign 
it.  where  he  claims  that  it  is  inaccurate,  but  is  willing  to  sign 
it  when  the  errors  pointed  out  by  him  have  been  corrected; 
nor  in  such  case  can  his  deposition  be  retaken  on  a  new  sub- 
poena, there  being  no  claim  of  an  omission  under  the  former 
subpoena  other  than  the  signature  of  the  witness. 

In  re  Hafer,  65  O.  S.  170. 

(j)  A  commissioner  appointed  by  a  court  of  another  state 
to  take  depositions  in  Ohio  is  an  officer  in  the  sense  in  which 
that  term  is  used  in  Section  11510  of  the  General  Code.  That 
section  as  applied  to  such  commissioner  who  seeks  to  punish 
a  Avitness  for  contempt  for  his  refusal  to  be  sworn  as  a  witness 
is  constitutional. 

Benckenstein  v.   Pcliott,  02  O.  1^.  20. 

Cf.  In  re  Goodman.  1  O.  D.  271,  7  N.  P.  201. 

In  re  Major,  12  N.  P.    (N.S.)    161,  56  Bull.  393. 

25S.  NUMBER  OF  WITNESSES. 

(a)  The  general  rule  is  that  the  testimony  of  one  credible 
witness  is  sufficient  to  prove  any  fact.  Even  in  tlie  ])robate 
of  a  will  the  testimony  of  one  competent  witness  to  the  will, 
that  all  formalities  necessary  to  its  execution  were  complied 
with  by  the  testator  and  tlie  witness,  is  sufficient  jiroof.  if 
believed,  for  admission  of  the  will  to  probate,  notwithstand- 
ing the  fact  that  the  other  witness  to  the  will  fails  to  remem- 
ber or  denies  compliance  with  one  or  more  of  the  essential 
statutory  requirements. 

In  re  Watts,  19  N.  P.   (N  R  )   225,  27  0    D    87. 

(b)  There  are  several  exceptions  to  this  rule.  A  person 
shall  not  be  convicted  of  treason  except  by  the  testimony  of 
two  credible  witnesses  to  the  same  overt  act  laid  in  the  indict- 
ment, unless  he  confesses  his  guilt  in  open  court.  A  person 
shall  not  be  convicted  of  misprision  of  treason  or  setting  on 
foot  or  providing  the  means  for  unauthorized  military  expedi- 
tions, except  by  the  testimony  of  two  credible  witnesses. 

See  Section   13673,  General   Code, 


333  WITNESSES  §  259 

(c)  To  warrant  a  conviction  under  an  indictment  for  per- 
jury, there  should  be  at  least  one  witness  to  the  corpus  delicti, 
or  the  falsity  of  the  matter  assigned  as  perjury,  and  that  the 
testimony  of  such  witness  must  be  corroborated  either  by  an- 
other witness  or  by  circumstantial  evidence  sufficiently  strong 
to  satisfy  the  jury  beyond  a  reasonable  doubt  of  the  guilt  of 
the  accused. 

State  V.  Courtright,  66  0.  S.  35. 

(d)  In  perjury  cases  it  is  not  error  for  the  court  to  charge 
the  jury  that  the  corroborative  evidence  need  not  be  of  suffi- 
cient force  to  equal  the  positive  testimony  of  another  witness, 
nor  such  as  would  require  a  jury  to  convict  in  a  ease  in  which 
a  single  witness  is  sufficient,  if  the  falsity  of  the  oath  is  estab- 
lished beyond  a  reasonable  doubt. 

Crusen  v.  State,   10  0.   S.  258. 
See  Silver  v.  State,  17  Oh.  365. 

(e)  In  trial  for  seduction  under  promise  of  marriage  and 
on  an  indictment  of  a  teacher  for  sexual  intercourse  with  his 
pupil  with  her  consent  while  under  his  instruction,  a  convic- 
tion shall  not  be  had  on  the  testimony  of  such  female  unsup- 
ported by  other  evidence  to  the  extent  required  as  to  the  prin- 
cipal witness  in  eases  of  perjury. 

See   Section    13671,   General   Code. 

(f)  A  divorce  or  a  judgment  for  alimony  will  not  be 
granted  upon  the  testimony  or  admissions  of  a  party  unsup- 
ported by  other  evidence.  No  admission  will  be  received  which 
the  court  has  reason  to  believe  was  obtained  by  fraud,  con- 
nivance, coercion  or  other  improper  means. 

Section  1198S,  General  Code. 

259.  TESTIMONY  OF  ACCOMPLICES. 

(a)  The  testimony  of  an  accomplice  should  be  very  cau- 
tiously received  and  should  be  suspiciously  scrutinized  by  the 
jury.  The  jury  should  require  the  testimony  of  an  accomplice 
to  be  corroborated  by  other  evidence  or  circumstances  ratlier 
than  to  convict  upon  his  unsupported  testimony.  Tt  can  rarely 
be  expected  that  the  testimony  of  an  accomplice  admitting  his 


§259  METZLER'S    OHIO    TRIAL    EVIDENCE  334 

own  turpitude  in  the  matter  would  be  sufficient  to  overcome 
all  reasonable  doubt  and  presumptions  in  favor  of  the  accused. 

Nolan   V.  State,   19   Oh.    131.  5. 

Allen   V.   State,   10  0.   S.   2S7,   30.-). 

State  V.  Robinson,  83  O.  S.   136,  142. 

Straub  v.  State.  5  C.  C.    (N.S.)    529,   17  C.  D.  50. 

(b)  And  it  is  the  duty  of  the  court,  in  its  discretion,  to 

advise  the  jury  not  to  convict  of  felony  upon  the  testimony 

of  an  accomplice  alone,  without  corroboration ;  but   there  is 

no  rule  of  law  preventing  a  jury  from  convicting  upon  the 

uncorroborated  testimony  of  an  accomplice. 

Allen  V.  State,  10  O.  S.  287. 

See  State  v.  Robinson,  83  O.  S.   136,  143. 

(c)  If  the  trial-court  has  advised  the  jury  not  to  convict 
a  felon  upon  the  testimony  of  an  accomplice  alone  without 
corroboration,  and  if  the  jury  find  the  accused  guilty,  it  is 
reversible  error  for  the  court  of  appeals  to  reverse  such  judg- 
ment on  the  sole  ground  "that  there  was  not  any  evidence 
offered  which  corroborated  or  tended  to  corroborate  the  testi- 
mony of  the  accomplice." 

State  V.  Lehr,  97  O,   S.  280. 

Cf.  State  V.   Holden,  20  N.  P.    (N.S.)   200,  28  0.  D.   123. 

(d)  The  question  whether  the  evidence  of  an  accomplice  is 

corroborated   by   the   testimony   of   another   witness   being   a 

question  for  the  jury,  it  is  error  for  the  court  to  charge  the 

jury  that  such  testimony  is  corroborated,  especially  when  the 

evidence  is  susceptible  of  another  construction.    But  the  court 

may  say,  if  it  is  a  fact,  that  the  witness  admits  his  complicity; 

for*  it  is  the  duty  of  the  court  to  aid  the  jury  in  determining 

■whether  there  is  corroboration. 

Noland  v.  State,  19  Oh.   131. 
Whiting  V.  State,  48  O.  S.  220. 
State  V.  Robinson,  83  O.   S    136,  143. 

(e)  It  is  not  necessary  that  the  crime  be  proved  independ- 
ently of  the  testimony  of  the  accomplice  nor  that  the  testi- 
mony of  the  accomplice  be  corroborated  in  every  particular; 
but  there  should  be  circumstantial  evidence  or  testimony  of 
some  witness,  other  than  the  accomplice,  tending  to  connect 


335  WITNESSES 


§259 


the  defendant  with  the  crime  charged  and  tending  to  prove 
some  of  the  material  facts  testified  to  by  the  accomplice. 

State  V.  Robinson,  83  0.  S.  136,  143. 

Waite  V.  State,  4  0.  App.  451,  23  C.  C.    (N.  S,)  455,  60. 

(f)  It  is  not  error  in  the  court  to  instruct  the  jury  that 
they  may  find  the  defendant  guilty  upon  the  testimony  of  an 
accomplice  corroborated  as  to  one  or  more  material  facts  by 
other  reliable  evidence,  notwithstanding  his  infamy  and  com- 
plicity. 

Brown  v.  State,  18  0.  S.  496. 

(g)  But  in  a  prosecution  of  two  county  commissioners  for 
accepting  a  bribe  for  the  award  of  a  contract,  it  is  error  to 
charge  that  the  agreement  claimed  by  the  state  to  exist  be- 
tween the  defendants  and  the  contractors  must  be  established 
beyond  a  reasonable  doubt  by  other  testimony  and  otherwise 
than  by  the  testimony  of  the  third  commissioner  and  con- 
tractors. The  effect  of  the  charge  was  to  withdraw  their  testi- 
mony from  the  jury. 

State  V.  Hare,  87  0.  S.  204. 

(h)  The  rule  that  a  defendant  can  not  be  convicted  of  a 
crime  on  the  uncorroborated  testimony  of  an  accomplice  does 
not  apply  to  the  female  in  sexual  crimes  if  she  is  under  six- 
teen. Neither  does  the  rule  apply  in  the  case  of  a  feigned 
accomplice.  But  a  pregnant  woman  who  consents  to  criminal 
miscarriage  is  an  accomplice ;  and  if  she  testifies  for  the  state, 
the  rule  applies. 

State  V.  Tuttlc,  67  0.  S.  440. 

Straub  v.  State,  5  C.   C.    (N.S.)    529,   17   C.   D.  50. 
Backenstoe  v.   State,   19  C.  C.  568,   10  C.  D.  688,  91. 
State  V.  McCoy,  52  0.  S.  157. 

(i)  The  rule  that  the  testimony  of  an  accomplice  should 
be  corroborated  applies  only  to  an  accomplice  who  testifies 
for  the  prosecution.  It  is  error  to  charge  a  jury  that  if  thoy 
find  one  of  defendant's  witnesses  to  bo  an  accomplice,  they 
should  disregard  his  evidence  unless  corroborated. 

Cook   V.   State,  3   W.   L.  G.   344,   3  ().   D.   R.    136,  7. 


§261  METZLER-S    OHIO    TRIAL    EVIDENCE  336 

260.  EITHER  OF  TWO  WITNESSES. 

(a)  When  there  are  two  witnesses  to  the  same  fact,  the 
tostimony  of  either  is  admissible.  So  where  a  statute  provides 
that  a  notice  must  be  served  in  the  presence  of  a  witness,  it  is 
not  necessary  to  produce  such  witness.  The  testimony  of  the 
party  who  served  the  notice,  or  of  any  person  who  knew  of  it, 
would  be  competent  to  show  that  the  notice  had  been  served. 

Russell  V.  Tippin,  5  C.  D.  443,  12  C.  C.  52. 

(b)  In  a  prosecution  of  a  man  for  perjury  for  falsely 
swearing  in  a  murder  case  that  he  saw  the  murdered  man 
knocked  down  by  another  at  a  certain  place,  the  falsity  of  the 
statement  may  be  proved  either  by  one  who  was  with  the 
murdered  man  at  the  time  or  by  one  who  was  with  the  witness 
accused  of  perjury. 

Rucli  V.  State,  IS  C.  C.   (N.S.)   301,  24  C.  D.  6"-),  2  0.  App.  150. 

(c)  Where  a  conversation  was  shown  Ijv  a  third  person 
who  had  heai'd  it,  the  adverse  party  insisted  that  the  evidence 
was  not  admissible  for  the  reason  that  it  v,as  not  the  best  evi- 
dence. He  also  contended  that  the  one  who  took  part  in  the 
conversation  should  have  been  called  to  testify.  The  court 
said  that  there  was  nothing  relating  to  the  principles  of  pri- 
mary and  secondary  evidence  involved  in  the  testimony 
offered;  that  what  was  said  in  the  conversation  was  the  matter 
to  be  proved,  and  that  any  one  who  heard  it  was  competent  to 
relate  it. 

Mimms  v.  State,   16  O.  S.  221,  231. 

261.  SEPARATION  OF  WITNESSES. 

(a)  It  is  certainly  a  good  practice,  where  a  party  requests 
it,  to  have  the  witnesses  examined  separately.  And  a  right- 
minded  judge  will  be  very  careful,  particularly  in  a  criminal 
case,  where  the  defendant  is  generally  in  custody,  unable  to 
attend  to  his  interests,  in  seeing  that  the  order  of  the  court 
is  strictly  complied  with. 

Lauglilin  v.  State,  18  Oh.  99,  103. 

(b)  Where  the  witnesses  in  a  cause  have  been  ordered  by 
the  court  at  the  request  of  a  party  to  withdraw,  and  one  of 


337  WITNESSES  §2Cl' 

them  remains  in  violation  of  the  order  and  hears  the  testi- 
mony of  the  other  Avitnesses,  it  rests  in  the  discretion  of  the 
court  Avhether  he  shall  afterwards  be  permitted  to  testify  in 
the  case. 

Laughlin  v.  State,  IS  Oh.  99, 

(c)  On  the  Avhole,  it  seems  that  althoufrh  the  ri^rht  to  ex- 
clude witnesses  for  -willful  disobedience  of  the  order  be  well 
established,  yet  judges  are  quite  cautious  of  exercising:  the 
power.  The  reason  probably  is,  because  a  party  may  in  that 
way,  without  any  fault  of  his  own,  be  put  in  very  great  haz- 
ard, by  losing  important  testimony.  lie  can  not  prevent  the 
misbehavior  of  his  witnesses. 

Laughlin  v.  State,  IS  Oh.  99,  103. 

(d)  While  the  court  is  vested  with  discretion  to  refuse  or 

permit    the   examination   of  a   witness   who   has   remained    in 

court  by  procurement  or  connivance  of  the  party  calling  him, 

in  violation  of  an  order  for  the  separation  of  witnesses,  it  is 

vested  with  no  such  discretion  to  prevent  such  examination 

where  there  has  been  no   such   procurement  or   connivance; 

but  the  order  is  to  be  enforced  by  the  officers  in  attendance, 

and  disobedience  of  it  punished  by  the  court  as  for  contempt. 

Dickson  v.  State,  39  0.  S.  73. 
See  State  v.  Ross,  15  Bull.  238. 


262.  LIMITATION  OF  NUMBER. 

(a)  The  court  in  its  discretion  may  impose  reasonable  lira- 
its  upon  the  introduction  of  cumulative  evidence.  Evidence 
.is  cumulative  which  merely  multiplies  witnesses  to  such  facts 

as  have  already  been  investigated,  or  onh'  adds  other  circum- 
stances of  the  same  general  character. 

(b)  A  reasonable  limitation  of  the  iiunihcr  of  witnesses 
that  may  be  called  in  proof  of  a  fact,  or  of  a  single  issue,  is 
within  the  discretion  of  the  trial-court,  to  be  exercised  no 
doubt  with  caution,  considering  the  nature  of  the  case,  the 
character  of  the  witnesses,  and  the  state  of  the  proof. 

Hupp  V.  Boring,  8  C  C.  2r>9,  4  C.  D.  nOO,   1. 


§262  METZLER'S    OHIO   TRIAL    EVIDENCE  338 

(c)  The  trial-court  may  exercise  a  reasonable  discretion  in 
the  limitation  of  the  number  of  witnesses  who  may  be  called 
in  proof  of  a  fact,  even  though  that  fact  may  determine  the 
issue.  A  trial  sometimes  becomes  a  contest  as  to  which  side 
can  overwhelm  the  other  with  the  larger  number  of  wit- 
nesses. A  court  of  justice  that  has  no  power  to  regulate 
such  exhibitions  is  hardly  worthy  of  the  name. 

Hupp  V.   Boring,  8   C.  C.  259,  4  C.  D.  560,   1. 

(d)  It  is  M^ithin  the  discretion  of  the  trial-court  to  limit 
the  number  of  witnesses  to  six  on  a  side  as  to  the  mental 
condition  of  a  person,  and  refuse  to  hear  cumulative  testi- 
mony on  the  same  facts  and  questions  by  thirteen  other 
persons.  (For  the  limitation  on  number  of  witnesses  on 
character,  see  Character  in  Index.) 

Bird  V.  Young,  56  O.  S.  210,  23. 

(e)  In  a  case  for  the  appropriation  of  property  in  the 
probate  court,  if  more  than  three  witnesses  are  examined  by 
either  party  on  the  same  point  in  the  same  case,  the  judge 
may  tax  the  costs  of  such  additional  witnesses  to  the  party 
calling  them.  This  statutory  provision  is  intended  as  a  dis- 
couragement to  the  calling  of  a  multiplicity  of  witnesses^ 

Section  11056,  General  Code. 
Kailroad  v.  Bolen,  76  O.  S.  376,  93, 


CHAPTER  XIX. 

COMPETENCY  OF  WITNESSES. 

2(1.'}.  (General  rule. 

2()4.  Competency   in   criminal   cases. 

265.  Religious  belief. 

266.  Privileged   communications — Clergymen. 

267.  Privileged  communications — Physicians. 

268.  Privileged  communications — Attorneys. 

269.  Of  husband  and  wife —  Civil   cases. 

270.  Of  husband  and  wife — Criminal  cases. 

263.  GENERAL  RULE. 

(a)  All  persons  are  competent  witnesses  except  those  of 
unsound  mind,  and  children  under  ten  years  of  age  who  ap- 
pear incapable  of  receiving  just  impressions  of  the  facts  and 
transactions  respecting  which  they  are  examined,  or  of  re- 
lating them  truly. 

Section  11493,  General  Code. 

(b)  A  person  affected  with  insanity  is  admissible  as  a 
witness,  if  it  appears  to  the  court,  upon  examining  him  and 
competent  witnesses,  that  he  has  sufficient  understanding  to 
apprehend  the  obligation  of  an  oath,  and  to  be  capable  of 
giving  a  correct  account  of  the  matters  which  he  has  seen  or 
heard  in  reference  to  the  questions  at  issue. 

State  V.  Brown,  2S  O.  D.  21.3,  20  N.  P.   (X.S.)   .3S.>,  .308. 

(c)  A  person  who  has  been  committed  to  a  hospital  for 
the  insane  on  the  ground  of  insanity,  is  competent  to  testify 
as  to  facts  witnessed  by  him  while  confined  in  the  hospital, 
such  as  a  fatal  assault  by  a  guard  upon  another  inmate,  if 
such  witness  has  the  understanding  required  by  the  preceding 
rule. 

State  v.  Brown,  20  N.  P.  (N.S.)   385,  28  0.  D.  213. 

(d)  An  objection  to  the  competency  of  a  witness  on  the 
ground   of  his  mental   incapacity  does   not   require   that   the 

339 


^264  METZLER'S    OHIO    TRIAL    EVIDENCE  340 

court  stop   the  trial  at  that  point  and  immediately  institute 
an  inquisition  as  to  the  mental  capacity  of  the  witness. 
Williams  V.  state,   11   C.  C.    (N.S.)    4,  20  C.  D.  342. 

(e)  "When  at  the  time  the  action  was  brought,  a  witness 
M^ould  have  been  incompetent,  but  an  amendatory  law  in 
force  at  the  time  of  the  trial  makes  him  competent,  the 
law  in  force  at  the  time  of  the  trial  governs  the  question. 
Nor  is  such  law  so  applied  liable  to  the  objection  of  being 
retroactive  within  the  prohibition  of  the  constitution. 

John  V.  Bridgman,  27  0.  S.  22. 

(f)  The  exclusion  of  a  witness  can  not  be  assigned  for 
error  unless  the  record  shows  on  what  ground  he  was  re- 
jected. But  where  a  witness  offered  is  improperly  rejected 
by  the  court,  as  incompetent  to  testify  in  the  case,  it  will  be 
held  by  a  reviewing  court  that  the  party  offering  the  witness 
has  been  prejudiced  by  his  exclusion,  though  the  facts  he 
was  expected  to  prove  are  not  shown  by  the  record.  It 
seems,  however,  that  the  court  may  require  a  statement  of 
what  is  expected  to  be  proved  by  the  witness. 

Armstrong  v.  Clark,  17  Oh.  495. 
Wolf  V.  Powner,  30  O.  S.  472. 
Hollister  v.  Reznor,  9  0.  S.  1,  8. 

264.  COMPETENCY  IN  CRIMINAL  CASES. 

(a)  No  person  shall  be  disqualified  as  a  witness  in  a  crim- 
inal prosecution  by  reason  of  his  interest  in  the  event  thereof, 
as  a  party  or  otherwise,  or  by  reason  of  his  conviction  of 
crime.  But  such  interest  or  conviction  *  *  *  may  be  shown 
for  the  purpose  of  affecting  the  credibility  of  such  witness. 
(See  exceptions  for  husband  and  wife  in  criminal  cases  in 
Privileged  Communications.) 

See  Section  13659,  General  Code. 

(b)  The  fact  that  an  accomplice  has  committed  perjury 

on  a  former  examination   touching  the   same   subject-matter, 

even  where  he  admits  the  fact  upon  his  present  examination, 

affects  only  his  credit,  and  does  not  render  him  incompetent, 

or  necessarily  render  his  testimony  incredible. 

Brown  v.  State,   IS  O.  S.  496. 

Mitchell  V.  State,  21  C.  C.  24,  II  C.  D.  446,  452. 


341  COMPETENCY     OF     WITNESSES  §  2G4 

(c)  On  the  trial  of  indictments,  complaints,  and  the  pro- 
ceedings against  a  person  charged  with  an  offense,  such  per- 
son at  his  own  request  shall  be  a  compcti'iit  \.itnco.s.  No 
person  shall  be  compelled  in  any  criminal  case  to  be  a  wit- 
ness against  himself;  but  his  failure  to  testify  may  be  con- 
sidered by  the  court  and  jury,  and  may  be  the  subject  of 
comment  by  counsel. 

Section   13661,   General   Code. 

Section  10,  Art.  1,  Constitution,  Jan.   1,   1913. 

See  State  v.  Morrow,  90  0.  S.  202. 

See  Parker  v.  Dover,  18  N.  P.   (N.S.)   465. 

(d)  The  former  law  was  a  part  of  Sec.  13661  of  the  Gen- 
eral Code,  and  was  as  follows:  "The  neglect  or  refusal  of 
such  person  to  testify  shall  not  create  a  presumption  against 
him,  nor  shall  reference  be  made  to  nor  comment  made  upon 
such  neglect  or  refusal." 

See  Tate  v.  State,  76  O.  S.  537. 

(e)  An  action  to  remove  a  prosecuting  attorney  from  office 
is  not  a  criminal  prosecution ;  it  is,  however,  essentially  penal, 
and  the  prosecuting  attorney  will,  at  his  own  request,  but 
not  otherwise,  be  a  competent  witness. 

Killits  V.  State,  19  C.  C.  740,  10  C.  D.  722. 

(f)  It  is  not  a  violation  of  the  constitutional  provision 
that  no  person  shall  be  compelled  in  a  criminal  case  to  be  a 
witness  against  himself,  for  the  trial-judge  to  require  the 
accused,  over  the  objection  of  his  counsel,  to  stand  up  for 
better  identification  by  the  prosecuting  witness. 

Coles  V.  State,  3  C.  C.    (X.S.)   420.  13  C.  D.  313. 
Cf.  Lindsey  v.  State,  69  O.  S.  215,  223, 

(g)  "Where  an  accused  states  that  he  was  required  against 
his  will  to  take  an  oath  and  give  testimony  in  his  case  be- 
fore the  grand  jury,  he  must  aver  how  he  was  compelled  to 
lake  the  oath  or  that  he  refused  to  take  it,  or  that  he  claimed 
the  privilege  of  refusing  to  testify,  or  what  he  testified  to,  or 
that  his  testimony  was  material  on  a  fact  necessary  to  be 
proved  by  the  state,  or  that  there  was  no  testimony  other 
than  his  own  before  the  jury  sufficient  to  justify  the  indict- 
ment. 

Lindsey  v.  State,  60  0.  S.  215. 
Cf.  State  V.  Co.x,  87  0.  S.  313. 


§266  METZLER'S    OHIO    TRIAL    EVIDENCE  342 

(h)  In  a  prosecution  for  being  a  known  gambler,  papers, 
race-horse  slips  and  telegrams  found  at  the  time  of  arrest 
lying  on  defendant's  desk  are  competent  against  him;  and 
it  is  not  a  violation  of  the  constitutional  provision  that  ac- 
cused can  not  be  compelled  to  be  a  witness  against  himself. 

Hirscli  V.  Cincinnati,  21   C.  C.   (N.S.)    561. 

265.  RELIGIOUS  BELIEF. 

(a)  Section  7  of  the  Bill  of  Rights  declares  that  no  per- 
son shall  be  incompetent  to  be  a  vv^itness  on  account  of  his 
religious  belief;  but  nothing  in  this  section  may  be  construed 
to  dispense  with  oaths  and  affirmations. 

(b)  No  one  is  rendered  incompetent  to  be  a  witness  on 
account  of  religious  belief;  nevertheless,  every  one  offered 
as  a  witness  in  a  court  must  take  an  oath  or  affirmation  be- 
fore giving  testimony.  And  an  examination  into  his  relig- 
ious belief  may  be  made  for  the  purpose  of  affecting  his 
credibility. 

Clintdii  V.  State,  33  O.  S.  27. 

Swan's  Treatise,  117. 

Section    11520,   General  Code. 

Cf.   Brink  v.  Stratton,   176  K.  Y.   150. 

(c)  A  person  who  believes  in  the  existence  of  a  Supreme 
Being,  Avho  will,  either  in  this  life  or  tiic  life  to  come,  inflict 
punishment  for  false  swearing,  may  be  sworn  as  a  witness. 
It  was  held  under  the  Constitution  of  1802  that  it  was  not 
necessary  that  the  witness  believe  in  a  future  state  of  re- 
wards and  punishment,  if  he  considered  an  oath  binding  on 
his  conscience. 

Clinton  v.  State,  3.3  0.  S.  27. 
Brock   V.   Milii.iian,    10  Oh.   121. 
Easterday  v.  Kilborn,  Wright  345. 

266.  PRIVILEGED   COMMUNICATIONS— CLERGYMEN. 

(a)  A  clergyman  or  priest  [shall  not  testify]  concerning 
a  confession  made  to  him  in  his  professional  character,  in 
the  course  of  discipline  enjoined  by  the  church  to  which  he 
belongs. 

Section  11494,  General  Code. 


343  COMPETENCY     Or     WITNESSES  §  2G8 

267.  PRIVILEGED   COMMUNICATIONS     PHYSICIANS. 

(a)  A  physician  [shall  not  testify]  concerning  a  communi- 
cation made  to  him  by  his  patient  in  that  relation,  or  his 
advice  to  his  patient.  But  the  physician  may  testify  by  ex- 
press consent  of  the  patient;  and  if  the  patient  voluntarily 
testifies,  the  physician  may  be  compelled  to  testify  on  the 
same  subject. 

Section  11494,  General  Code. 

(b)  The  statement  of  a  physician  to  his  patient  in  that 
relation  that  he  is  afflicted  with  a  certain  disease  is  advice 
within  the  meaning  of  this  section. 

Railroad  Trainmen  v.  Daley,  11  C.  C.  (N.S.)   464,  21  C.  D.  391. 

(c)  A  communication  by  a  patient  to  a  physician  may  be 
not  only  by  word  of  mouth,  but  also  by  exhibiting  the  body 
for  his  opinion,  examination  or  diagnosis.  There  can  be  a 
waiver  only  by  express  consent  of  the  patient  or  by  his 
voluntarily  testifying  as  to  the  matter. 

Ausdenmoore  v.  Holzback,  89  O.  S.  381. 

(d)  It  is  not  competent  to  prove  by  a  physician  the  com- 
.munications  made  to  him  by  his  patient  in  that  relation;  but 

such  physician  may  testify  as  to  facts  which  are  within   his 
knowledge    independent    of    such    communications.      He    may 
testify  as  to  the  condition  and  state  of  health  of  his  patient, 
as  well  as  the  treatment  by  him  prescribed  for  his  patient. 
Insurance  Co.  v.  Howie,  68  0.  S.  614. 

(e)  When  the  trial-judge  has  required  a  party  to  submit 
to  a  physical  examination,  the  physician  making  such  exami- 
nation cannot  claim  the  privilege,  but  may  be  required  to 
testify  as  to  the  condition  of  such  party. 

Sucher  v.  Burger,  13  N.  P.   (N.S.)   161,  22  0.  D.  385. 

268.  PRIVILEGED  COMMUNICATIONS— ATTORNEYS. 

(a)  An  attorney  [shall  not  testify!  concerning  a  com- 
munication made  to  him  by  his  client  in  that  relation,  or  his 
advice  to  his  client.    But  the  attorney  may  testify  by  express 


R  268  METZLER'S    OHIO    TRIAL    EVIDENCE  344: 

consent  of  the  client;   and   if  the  client   voluntarily  testifies, 

the  attorney  may  be  compelled  to  testify  on  the  same  subject. 

Sfction    114!)4,  Gt'noral   Code. 

McKdvey  V.  McKelvey,  23  C.  D.  Il7,  14  C.  C.    (N.S.)    331,  332. 

(b)  This  section  is  applicable  only  where  the  communica- 
tion is  of  such  a  character  that  it  would  not  have  been  made 
except  for  the  relation  of  attorney  and  client. 

Smart  v.  Lodge,  6  C.  C.   (N.S.)   15,  17  CD.  273. 

(c)  Communications  made  by  a  client  to  his  attorney  with 
a  view  to  professional  advice  or  assistance  are  privileged; 
and  courts  will  not  require  nor  permit  them  to  be  divulged 
by  the  attorney  without  the  consent  of  his  client.  But  if  a 
party  offers  himself  as  a  witness  and  gives  evidence  generally 
in  the  case,  he  thereby  loses  this  privilege  and  consents  to 
the  examination  of  his  attorney  touching  such  communica- 
tions as  are  pertinent  to  the  issue.  At  whatever  stage  of 
the  trial  a  party  offers  himself  as  a  witness,  he  may  on  cross- 
examination  be  interrogated  as  to  such  communications;  and 
they  may  be  proved  by  the  attorney  either  as  evidence  in 
chief  or  for  the  purpose  of  impeachment. 

King  V.  Barrett,  11  O.  S.  261. 

(d)  In  a  criminal  case  for  seduction,  the  defendant  can- 
not,  without  the  consent  of  the  prosecuting  witness,  prove  by 
her  attorney  admissions  made  by  her  in  consultation  con- 
cerning a  civil  action  pending  between  her  and  the  defend- 
ant. The  admissions  so  made  are  privileged  notwithstanding 
the  fact  that  her  mother  was  present  at  the  consultation. 

Bowers  v.  State,  20  f).  S.  542. 

(e)  A  lawyer  is  not  privileged  from  testifying  in  a  case 

against  his   client   as  to   a   conference   between  him  and  his 

client,   in   which    the    future   wrong-doing    of   his    client    Avas 

discussed;   nor  as  to   facts  affecting  the   client,  but   derived 

from  outside  sources. 

Cxolner  v.  State,   10   C.  C.    (N.S.)   317. 
Tvogers  v.   Dare,  Wriglit  136. 

(f)  AYhere  the  accused  in  a  criminal  trial  becomes  a  wit- 
ness  in   his   own  behalf,   he   cannot  be   compelled   on    cross- 


345  COMPETENCY     OF    WITNESSES  §268 

examination  to  disclose  the  confidential  communications  be- 
tween himself  and  his  attorney;  nor  can  such  disclosures  be 
required  of  the  attorney  Avithout  the  consent  of  the  accused. 
It  is  the  privilege  of  the  accused  to  have  such  communica- 
tions protected  from  compulsory  disclosure,  and  it  is  not 
waived  by  his  becoming  a  witness.  Section  11494  (Par.  1) 
does  not  apply  to  criminal  cases. 
Duttenhofer  v.  State,  34  0.  S.  91,  95. 

(g)  "Where  a  report  of  an  accident  was  made  to  a  com- 
pany's claim  agent  by  the  conductor  and  motorman,  which 
report  was  made  for  the  information  of  the  claim  agent  and 
for  use  of  counsel  in  case  of  suit,  and  such  report  was  turned 
over  to  such  counsel,  it  is  a  privileged  communication. 

Ex  parte  Schoepf,  74  0.  S.  1. 

(h)  An  attorney  who  drew  the  will  of  a  decedent,  but 
who  performed  no  other  services,  is  not  debarred  from  testi- 
fying as  to  conversations  occurring  between  them  not  in  con- 
nection with  the  drawing  of  the  will. 

Foltrup  V.  Schloemcr,  13  C.  C.   (X.S.)  473,  23  C.  D.  467. 

(i)  And  where  a  testator  procures  his  attorney  as  a  sub- 
scribing witness  to  his  will,  he  thereby  expressly  consents  that 
such  attorney  may  testify  as  fully  as  any  other  subscribing 
witness,  and  thereby  waives  the  exemption  in  the  provisions 
of  this  statute. 

Baird  v.  Detrick,  8  O.  App.  198,  28  O.  C.  A.  257. 

(j)  If  a  testator  who  is  an  eminent  lawyer  prepares  his 
own  will  and  goes  to  attorneys  to  have  it  executed,  it  is  said 
that  the  relation  between  the  testator  and  such  attorneys  is 
not  that  of  attorney  and  client;  and  accordingly,  information 
which  is  given  by  the  testator  to  such  attorneys  is  not  privi- 
leged. 

Ewalt  V.  Ames,  6  0.  App.  374,  29  C.  D.  133,  27  O.  C.  A.  465,  475. 

(k)  The  statements  of  one  accused  of  crime  made  to  one 
whose  regular  employment  is  practicing  law  before  justices 
of  the  peace,  and  whose  aid  and  counsel  are  sought  as  such 
attorney  or  counselor,  such  statements  being  made  in  answer 
to  the  inquiries  of  such   adviser  as   to   what  the  facts  con- 


R  269  METZLER'S    OHIO    TRIAL    EVIDENCE  346 

cerning  the  alleged  offense  were,  are  privileged  communica- 
tions although  the  witness  had  not  been  admitted  to  practice 
in  the  courts  of  record  of  the  state. 

Benedict  v.  State,  44  O.  S.  679. 

Contra,  State  v.  Buikliardt,  3  Bull.  845,  7  0.  D.  R.  537. 

269.  OF  HUSBAND  AND  WIFE— CIVIL  CASES. 

(a)  Husband  or  wife  [shall  not  testify]  concerning  any 
communication  made  by  one  to  the  other,  or  an  act  done  by 
either  in  the  presence  of  the  other,  during  coverture,  unless 
the  communication  was  made,  or  act  done,  in  the  known 
presence  or  hearing  of  a  third  person  competent  to  be  a 
witness.  The  rule  shall  be  the  same  if  the  marital  relation 
has  -ceased  to  exist. 

Section  11494,  General  Code   (Par.  3). 

(b)  A  husband  or  wife  cannot  testify  as  to  the  contents 
of  a  written  paper  handed  by  one  to  the  other,  and  examined 
and  signed  in  the  presence  of  each  other  during  coverture, 
unless  it  is  done  in  the  known  presence  or  hearing  of  a  third 
person  competent  to  be  a  witness. 

Dick  V.  Hyer,  94  0.  S.  351. 

(c)  Under  this  statute,  husband   and  wife  are  competent 

witnesses  for  or  against  each  other  in  civil  cases,  except  as 

to  the  communications  and  acts  therein  specified.     A  married 

woman  called  as  a  witness  may  testify  to  all  matters  within 

her  knowledge,  except  as  stated  in  the  statute, 

Westerman  v.  Westerman,  25  O.  S.  500. 
Howard  v.  Brower,  37  O.  S.  402. 
Bean  v.  Green,  33  O.  S.  444. 

(d)  Where  a  wife  was  living  with  her  parents  separate 
from  her  husband,  and  the  question  was  whether  she  was 
there  by  the  wrong  of  the  hu.sband  or  the  ])a rents,  letters 
written  by  her  during  such  separation,  in  which  she  ad- 
dresses him  as  her  dear  husband,  are  competent  to  show 
the  condition  of  her  feelings  toward  him.  The  letters  could 
not  be  regarded  as  a  communication  within  the  object  or 
purpose  of  the  statute. 

Holtz  V.   Dick,   42   O.   S.   23,   27. 


347  COMPETENCY     OF    WITNESSES  §269 

(e)  Evidence  that  a  third  person  was  present,  and  known 
to  be  present,  at  the  time  of  making  such  communications 
or  doing  such  acts,  is  for  the  court  and  not  for  the  jury ; 
and,  on  error,  will  be  presumed  to  have  been  given  to  the 
court  unless  the  contrary  appears. 

Westernian  v.   Westerman,  25  0.   S.  500. 

(f)  The  reason  for  the  exclusion  ceases  when  the  husband 
and  wife  show  that  the  communication  is  not  of  a  confiden- 
tial nature  by  making  it  in  the  known  presence  of  a  third 
person  competent  to  be  a  witness,  although  such  person  is 
not  living  at  the  time  of  the  trial.  And  the  husband  or  wife 
who  is  called  to  prove  a  communication  or  act  is  competent 
to  testify  to  the  known  presence  of  a  third  person. 

Sessions  v.  Trevitt,  39  0.  S.  259,  267. 
Morgan  v.   Bartlette,  3   C.  C.  431,  2  C.  D.  244. 
Sieving  v.  Seidelmeyer,  4  Bull.  213,  7  0.  D.  R.  609. 
McCague   v.  Miller,   36  0.  S.   595. 

(g')  The  testimony  of  a  wife  that  her  husband  turned 
over  his  wages  to  her,  though  made  when  no  third  person 
competent  to  be  a  witness  was  present,  cannot  be  prejudicial 
to  the  adverse  party  where  there  was  no  dispute  about  the 
matter,  and  the  husband  testified  to  the  same  effect. 

Railway  v.  Waterwortli,  21   C.  C.  495,  11   CD.  621. 

(h)  In  an  action  on  a  promissory  note,  where  one  of  the 
makers  is  denying  that  he  executed  the  note  or  that  there 
was  consideration  therefor,  it  is  not  error  to  permit  the 
widow  of  the  other  maker  to  testify  as  to  certain  matters 
which  arose  between  herself  and  her  husband  when  no  other 
person  competent  to  be  a  witness  was  present. 

Woodbury  v.  Bollmeyer,  20  C.  C.    (N.S.)    113. 

(i)  Where  words  defamatory  of  the  character  of  a  mar- 
ried woman  are  published  in  the  presence  and  hearing  of  her 
husband,  he  is  a  competent  witness  to  prove  the  speaking  of 
the  words  in  an  action  of  slander  brought  by  the  husband 
and  wife. 

Duval  V.  Davey,  32  0.   S.  604. 

Cf.  Schutter  v.  Williauis,   1   W.  L.  J.  319,   1   O.  D.  K.  47. 


§270  METZLER'S    OHIO    TRIAL    EVIDENCE  348 

(j)  In  an  action  against  a  married  woman  and  others  at 
a  time  when  her  husband  Avas  incompetent  to  testify  for  or 
against  her,  he  was  nevertheless  a  competent  witness  for  a 
co-defendant,  if  the  case  was  one  in  which  separate  judg- 
ment might  be  rendered. 

Edwards  v.   Edwards,  24  0.  ,S.  402. 

(k)  Declarations  of  a  wife  in  her  dreams  and  not  in  the 
known  presence  of  a  third  person  competent  to  be  a  witness 
are  not  admissible  to  show  injury  to  feelings  by  a  libel.  And 
it  will  be  presumed  on  error  that  it  happened  at  night  and 
that  no  third  person  was  present. 

Gazette  Co.  v.  Grooms,  21  Bull.  292,  10  0.  D.  R.  489. 

(1)  Where  the  question  is  whether  there  was  a  common- 
law  marriage,  either  party  is  a  competent  witness  to  prove 
the  agreement.  After  the  matrimonial  status  is  fixed  by 
cohabitation,  the  parties  come  under  the  rule  excluding  cer- 
tain communications  and  acts. 

Umbenhour  v.  Umbenlioiir,   12  C.  C.   (N.S.)   289,  21  C.  T>.  317. 

(m)  The  parties  in  an  action  for  divorce  or  alimony,  not- 
withstanding their  marital  relation,  shall  be  competent  to 
testify  in  such  actions  and  proceedings  to  the  same  extent 
that  any  other  witness  might. 

See  Section   11988,  General  Code. 

270.  OF  HUSBAND  AND  WIFE— CRIMINAL  CASES. 

(a)  Husband  and  wife  shall  be  competent  witnesses  to 
testify  in  behalf  of  each  other  in  all  criminal  prosecutions, 
and  to  testify  against  each  other  in  all  actions,  prosecutions, 
and  proceedings  for  failure  to  provide  for,  neglect  of,  or 
cruelty  to,  their  child  or  children  under  sixteen  years  of  age. 
Such  *  *  *  relationship  may  be  shown  for  the  purpose  of 
affecting  the  credibility  of  such  witness. 

Husband  or  wife  shall  not  testify  concerning  a  communi- 
cation made  by  one  to  the  other,  or  act  done  by  either  in  the 
presence  of  each  other  during  coverture,  unless  the  com- 
munication was  made  or  act  done  in  the  known  presence  or 
-.'  aring   of   a   third   person   competent   to    be   a   witness,    or 


349  -COMPETENCY     OF     WITNESSES  §270 

[unless]  in  case  of  personal  injury  by  either  the  husband  or 
wife  to  the  other,  or  [unless]  in  case  of  the  failure  to  pro- 
vide for,  or  the  neglect  or  the  cruelty  of  either  to  their 
children  under  sixteen  years  of  age. 

The  rule  shall  be  the  same  if  the  marital  relation  has 
ceased  to  exist;  but  the  presence  or  Avhereabouts  of  the  hus- 
band or  wife  shall  not  be  construed  to  be  an  act  under  this 
section. 

Section  13659,  General   Code. 

State  V.  Orth,  79  0.  S.  130,  chan'ged  by  amendmetit. 

(b)  The  wife  of  one  accused  of  a  crime  may  testify  in 
favor  of  her  husband  and  prove  an  alibi,  even  though  no  one 
else  was  present.  And  in  the  trial  of  a  husband  upon  the  charge 
of  having  committed  a  robbery  upon  his  wife,  the  latter  is  a 
competent  witness  for  the  state,  and  may  testify  to  every- 
thing which  occurred  at  the  time  and  place  of  the  alleged 
robbery. 

State  v.  Payton,  21  Bull.  337,  10  O.  D.  R.  826. 
State  V.  Smith,  7  N.  P.  72,  n  0.  D.  749. 

(c)  When  the  husband  or  wife  of  a  person  on  trial  for 
crime,  is  called  as  a  witness  by  and  in  behalf  of  such  person, 
such  witness  occupies  the  same  position  that  any  other  com- 
petent witness  does,  and  may  be  cross-examined  by  the  prose- 
cuting attorney  in  the  same  manner  as  might  be  done,  if  he 
or  she  was  not  the  husband  or  wife  of  the  person  on  trial, 
except  only  as  to  confidential  communications  or  acts  as 
pointed  out  in  the  statute.  And  if  the  direct  examination 
violates  the  statutory  provision  and  no  objection  is  made, 
tlie  cross-examination  may  go  to  further  particulars. 

Haberty  v.  State,  8  C.  C.  202,  4  C.  D.  4G2,  3. 

(d)  Letters    from    husband    to    wife    strongly    tending    to 

prove  marriage  relation  between  them,  when  produced  by  a 

third  party  at  tlie  trial  of  tlic  liusband  for  l)igamy,  to  which 

third  person  they  had  been  given  by  the  wife,  will   not  be 

privileged    under    the    statute,    but    are    competent    evidence 

against  the  husband. 

Wlialon  V.  state,  12  C.  C.  584,  5  C.  T).  4^,8. 

Cf.  State  V.  Bates,  4  N.  P.  (N.S.)   502,  17  0.  D.  301. 


§270  METZLER'S    OHIO   TRIAL    EVIDENCE  350 

(e)  Letters  written  by  one  accused  of  incest  upon  his 
daughter,  addressed  to  his  wife  and  properly  in  the  posses- 
sion of  a  third  person,  who  produces  them  with  nothing  to 
show  that  they  had  ever  been  delivered  to  the  wife,  and  the 
only  part  prejudicial  to  the  accused  being  addressed  to  the 
daughter,  are  properly  admitted  in  evidence  on  behalf  of 
the  state. 

Lowther  v.  State,  2  C.  D.  685,  4  C.  C.  522, 

(f)  The  wife  is  a  competent  witness  to  testify  to  the  non- 
access  of  her  recreant  husband  in  a  criminal  case  against  the 
putative  father  of  her  illegitimate  child,  for  failure  to  pro- 
vide said  child  with  necessary  and  proper  food,  clothing  and 
shelter,  under  the  provision  of  Section  12970  of  the  General 
Code. 

State  V.  Bone,  25  C.  C.   (N.S.)    447,  27  C.  D.  472. 

is)  Upon  indictment  of  a  husband  for  perjury  and  after 
divorce,  the  wife  may  testify  against  her  husband  as  to  facts, 
independent  of  the  coverture,  and  not  acquired  in  conjugal 
confidence,  nor  by  reason  of  the  marital  relation. 

State  V.  Clark,  10  Bull.  202,   16  Bull.  178. 

(h)  Where  the  woman  with  whom  the  defendant  was 
living  as  his  wife  at  the  time  of  the  murder  of  which  he  is 
accused,  is  shown  to  have  been  previously  married  to  an- 
other man  who  was  still  living  and  from  whom  she  had  not 
been  divorced,  it  is  competent  for  the  state  to  call  her  as  a 
witness  against  the  defendant. 

Lynch  v.  State,  5  0.  App.  16,  23  C.  C.   (N.S.)  230,  27  C.  D.  189. 


CHAPTER  XX. 
COMPETENCY  OF  PARTIES. 

271.  General  rule. 

272.  Objection  to  incompetency. 

273.  Necess«iry  parties. 

274.  Parties  not  adverse  to  representative. 

275.  Agents  not  parties. 

276.  Heirs  not  parties. 

277.  Other  witnesses  not  parties. 

278.  Party  against  executor. 

279.  Party  against  guardian. 

280.  Party  against  otlier  representatives. 

281.  Party  against  assignee. 

282.  Assignor  against  representatives. 

283.  First  exception. 

284.  Second  exception. 

285.  Third  exception. 

286.  Fourth  exception. 

287.  Fifth  exception. 

288.  Sixth  exception. 

289.  Seventh  exception. 

290.  Eighth  exception. 

291.  Ninth  exception. 

292.  Reason  and  spirit  clause. 

293.  Compelling  a  party  to  testify. 

271.  GENERAL  RULE. 

(a)  A  party  shall  not  testify  when  the  adverse  party  is 
the  guardian  or  trustee  of  either  a  deaf  and  dumb  or  an 
insane  person,  or  of  a  child  of  a  deceased  person,  or  is  an 
executor  or  administrator,  or  claims  or  defends  as  heir, 
frrantee,   assignee,   devisee,   or  legatee   of  a   deceased  person. 

Section   11495    (par.    1),   General   Code. 

(b)  This  section  is  in  the  nature  of  a  statute  against 
frauds  and  perjuries.  The  testimony  of  tlie  i)arty  to  the 
action,  though  generally  admissil)lo.  is  excluded  wiien  it  re- 
lates to  transactions  between  liiiii  jiikI  a  deceased  person, 
against  whose  estate  he  asserts  a  claim.     It  was  considered 

351 


§272  METZLER'S    OHIO    TRIAL    EVIDENCE  352 

that  there  would  be  a  temptation,  in  such  a  case,  to  fraud 
and  perjury,  against  which  protection  should  be  given  by 
excluding  the  testimony. 

Stevens  v.  Hartley,   13  0.  S.  525,  531. 
Roberts    v.   Briscoe,   44    0.    S.    506,   601. 

(c)  In  the  practical  application  of  this  rule  of  exclusion, 
it  is  scarcely  necessary  to  say  that  it  has  nothing  to  do  with 
the  question  of  competency  or  admissibility  of  the  testimony, 
but  relates  solely  to  the  competency  of  the  party  as  a  wit- 
ness. And  equality  of  the  parties  to  the  suit  is  the  object 
rather  than  the  weighing  in  delicate  scales  the  degree  of 
interest  the  witness  may  have,  leaving  that  to  be  considered 
as  affecting  his  credibility. 

Hubbell  V.  Ilubbell,  22  O.   S.  208,  221. 

Powell   V.   Powell,  78  0.   S.  331,  335. 

Pvoberts   v.    Briscoe,   44    0.    S.    506,    600. 

272.  OBJECTION  TO  INCOMPETENCY. 

(a)  When  a  party  is  called  to  give  testimony  not  permit- 
ted by  any  of  the  exceptions,  an  objection  by  the  adverse 
party  to  the  proposed  testimony  on  the  ground  that  it  is 
incompetent  is  sufficient ;  it  is  not  necessary  to  object  to  the 
witness  as  incompetent. 

Farley   v.    Lisey,   55   0.   S.   627. 

(b)  Where  testimony  of  a  party  is  heard  subject  to  a 
general  objection  to  his  competency  because  the  adverse 
party  is  the  executor  of  a  deceased  person,  and  it  does  not 
appear  whether  the  events  testified  to  occurred  before  or 
after  the  death  of  the  testator,  and  the  executor  makes  no 
motion  to  strike  out  the  testimony,  but  presents  counter-evi- 
dence, without  further  insisting  on  his  objection,  it  will  be 
presumed  that  the  party  is  a  competent  witness  upon  the 
matters  as  to  which  he  testified. 

Meier  v.  Herancourt,  8  Bull.  20,  6  0.  D.  R.  1164. 

(c)  Judgment  against  an  administrator  will  not  be  re- 
versed for  error  in  permitting  the  adverse  party  to  testify, 
no  objection  having  been  made  to  such  testimony  at  the  time, 
and  there  being  enough  to  support  the  judgment  without  it. 

Young   V.   Langdon,    12   Bull.   246,   9   0.   D.   R.   367. 


353  COMPETENCY     OF     PARTIES  §273 

273.  NECESSARY  PARTIES. 

(a)  A  party  designed  to  be  excluded  from  testifying  by 
this  section  must  be  a  real  and  not  a  mere  formal  and  un- 
necessary party.  He  must  be  adverse  in  interest  and  not 
merely  in  his  nominal  status.  And  his  incompetency  as  a 
witness  arises  not  simply  from  standing  in  the  position  of  a 
party,  but  because  being  opposite  in  interest,  the  adverse 
party  is  a  guardian,  or  belongs  to  one  of  the  classes  named 
in  the  statutes. 

Baker  v.  Jerome,  50  O.  S.  6S2,  89. 
Wolf  V.  Powner.  30  O.  S.  472,  476. 
Baker  v.  Kellogg,  20  0.  S.  663. 

(b)  Both  the  party  disqualified  and  the  adverse  party 
referred  to  must  be  parties  to  the  record,  and  adversely 
interested  in  the  determination  of  the  issues  of  fact,  and 
they  must  be  so  related  to  the  action  and  the  issues  at  the 
time  of  trial;  but  it  matters  not  whether  they  stand  upon 
the  same  side  or  opposite  sides  of  the  record. 

Hubbell  V.  Hubbell,  22  0.  S.  208,  221. 
Powell  V.  Powell,  78   0.   S.   331,  337. 

(c)  A  person   not   a   necessary  party   cannot  be   excluded 

by  the  convenient  process  of  making  him  a  party,  although 

the  plaintiff  claims  under  a  former  deceased  owner.     But  if 

a  person  is  a  necessary  party,  although  not  in  fact  made  a 

party,  it  is  possible  that  the  reason  and  spirit  clause  would 

exclude  his  testimony. 

Mathews   v.   Mackey,    18   C.   C.    (N.S.)    413. 
Ryan   v.   O'Connor,  41    0.   S.   36S,   71. 

(d)  Where  a  grantee  holding  the  legal  title  to  lands  in 
trust  for  the  grantor,  and  without  the  knowledge  of  the 
grantor  conveys  the  lands  to  another  upon  the  same  trust, 
in  an  action  by  the  grantor  against  the  heirs  of  the  second 
grantee  to  enforce  the  trust  upon  wliieh  he  took  the  legal 
title,  it  was  held  that  the  first  grantee  was  not  a  necessary 
party;  and  lliat  the  first  grantee  Avas  a  competent  witness 
for  the  first  grantor  against  the  heirs  of  the  second  grantee 
to  establish  the  trust  in  the  property. 

Ryan    v.    O'Connor,    41    0.    S.    368. 

See  VVilllam.s  v.  Longley,  3  C.  C.  508,  2  C.  I).  292. 


§275  METZLER'S   OHIO   TRIAL   EVIDENCE  35^ 

(e)  The  provisions  of  this  and  related  sections  do  not  pre- 
vent a  married  woman  from  testifying  as  to  a  contract  between 
herself  and  one  who  has  since  died,  if  the  husband  of  such 
married  woman,  with  her  consent,  has  brought  an  action  for 
the  services  of  his  wife,  where  such  services  were  performed 
in  furtherance  of  her  husband's  business,  and  in  connection 
with  her  domestic  duties.  In  such  a  case,  the  wife  is  not  a 
necessary  party. 

Hess  V.  Clutz,  8  O.  App.  57,  28  O.  C.  A.  81,  29  C.  D.  497. 

274.  PARTIES  NOT  ADVERSE  TO  REPRESENTATIVE. 

(a)  Where  a  mortgagor  died  insolvent  and  no  relief  is 
sought  against  his  estate,  the  sole  question  being  between 
the  several  purchasers,  as  to  Avhose  land  shall  be  first  charged, 
either  party  claiming  under  his  conveyance  from  the  de- 
ceased mortgagor  is  a   competent  witness   against   the   other. 

Sternberger   v.  Hanna,  42   0.   S.   305. 

(b)  Death  of  the  agent  who  made  a  contract  does  not 
exclude  the  other  party's  evidence  as  to  the  contract.  This 
section  relates  only  to  the  death  of  principals;  and  the  omis- 
sion of  agents,  a  more  numerous  class,  was  evidently  inten- 
tional. And  to  construe  the  reason  and  spirit  clause  as 
adding  them  would  be  judicial  legislation. 

Bank  v.  Cornoll,  41  O.  S.  401. 
Cochran  v.  Almack,  39  O.  S.  314. 

(c)  And  where  there  are  two  parties,  plaintiffs  or  de- 
fendants, claiming  several  interests  under  the  same  title  or 
alleged  state  of  facts,  and  the  adverse  party  is  a  competent 
witness  as  against  one  of  them,  and  incompetent  as  against 
the  other,  and  the  case  is  one  in  which  separate  judgments 
may  be  rendered,  the  testimony  of  such  party  may  be  re- 
ceived in  evidence,  but  can  be  used  and  considered  only  as 
against  the  party  as  to  whom  the  witness  was  competent. 

Hubbell    V.    Hubbell,   22    0.    S.    208. 

275,  AGENTS  NOT  PARTIES. 

(a)  An  agent  of  a  vendor  who  makes  a  sale  of  goods  for 
l.is   principal,    is    not    rendered    incompetent    to    testify    as    a 


355  COMPETENCY     OF     PARTIES  §277 

witness   to    the   circumstances   of   the    transaction   because    of 
the  decease  of  the  vendee. 
Shaub    V.    Smith,    50    0.    S.    648. 

(b)  In  an  action  by  a  corporation  against  an  executor  or 

administrator,  the  general  manager  of  the  corporation  is  not 

disqualified  to  testify  to  facts  occurring  before  the  death  of 

such  decedent.     And  the  members  of  a  fraternal  order,  which 

is   a   party  to   a   case,   are   competent   to   testify   against   the 

adverse  party  who  claims  as  an  heir. 

Milling  Co.  v.  Bunn,  75  O.  S.  270. 

Cf.  French  v.  Carkin,  30  C.  D.  68. 

Foxhever  v.  Ked  Cross,  14  C.  D.  56,  2  C.  C.    (N.S.)   394. 

276.  HEIRS  NOT  PARTIES. 

(a)  On  the  trial  of  an  action  on  a  promissory  note  brought 
by  the  administratrix  of  the  estate  of  the  payee  against  the 
administratrix  of  the  estate  of  the  maker  thereof,  the  chil- 
dren of  the  payee,  not  being  parties,  are  competent  witnesses 
to  testify  against  the  defendant  as  to  conversations  had  with 
the  maker  during  his  lifetime  concerning  his  liability  on  the 
note  and  the  consideration  for  the  same,  although  such  chil- 
dren are  legatees  or  devisees  under  the  will  of  said  payee. 

Powell  V.  Powell,  78  0.  S.  331. 

Cf.  Rowland  v.  Griffiths,  3  Bull.  590,  6  0.  D.  R.  619. 

(b)  In  an  action  to  recover  real  property,  in  which  the 
plaintiffs  relied  upon  a  deed  claimed  to  have  been  made  to 
their  father,  since  deceased,  where  the  question  was  whether 
the  deed  had  in  fact  been  executed  and  delivered,  the  widow 
of  the  decedent,  not  being  a  party,  is  a  competent  Avitness  to 
prove  such  execution  and  delivery,  notwithstanding  the  rea- 
son and  spirit  clause ;  and  the  fact  that  her  right  to  dower 
in  the  premises  may  depend  on  the  validity  of  the  deed  will 
make  no  difference. 

Keys    V.    Gore,    42    0.    S.   211. 

Cf.  Williams  v.  Longley,   3   C.  C.   508,  2  C.  D.  292. 

277.  OTHER  WITNESSES  NOT  PARTIES. 

(a)  Tn  an  action  to  marshal  liens  where  the  debtor  and 
one  of  the  creditors  charged  the   other  creditor   Avilh    usury. 


§278  METZLER's  OHIO  vr^iAL  EV!~E^;c::  356 

it  was  held   on   appeal   that  the   debtor,    not    being   a   party, 
could  testify  against  the  creditor  charged  with  usury  though 
the  defense  was  made  by  the  administrator  of  such  creditor. 
Johnson  v.   Connable,  41  O.   S.   178. 

(b)  A  grantor  is  not  disqualified  to  be  a  witness  in  a  con- 
test to  reform  a  deed  between  the  heirs  of  the  grantee  and 
his  wife  who  claims  that  the  deed  was  in  trust  for  her.  He 
is  not  a  party  and  has  no  adverse  interest. 

Thompson  v.  Thompson,   18  0.  S.  73. 

(c)  Where  one  of  the  four  makers  of  a  note,  claiming  to 
be  a  surety,  having  paid  the  balance  due  after  the  death  of 
two  of  such  makers,  both  of  whom  he  alleges  were  principals 
as  to  him,  brings  an  action  against  the  administrator  of  one 
of  the  alleged  principals,  and  issue  is  joined  as  to  who  were 
principals  and  who  were  sureties,  the  other  remaining  maker, 
not  being  a  party  to  the  action,  is  not  incompetent  under  this 
section  to  testify  as  to  the  relation  existing  between  the 
deceased  and  the  plaintiff. 

Butt  V.  Worthington,  12  C.  D.  775,  11  C.  C.  (N.S.)  371. 

278.  PARTY  AGAINST  EXECUTOR. 

(a)  In  an  action  brought  by  an  executor  to  enforce  a  trust 
in  land  deeded  by  a  father  to  his  son,  the  son  is  incompetent 
to  testify  to  matters  which  occurred  before  the  death  of  his 
father. 

Paddock  v.  Adams,  56  0.  S.  242. 

(b)  It  was  held  that  where  an  executor  as  residuary 
legatee  gave  a  bond  conditioned  to  pay  all  the  debts,  the 
plaintiff  in  an  action  on  the  bond  cannot  testify  to  trans- 
actions wath  the  testator.  The  reason  of  the  rule  applies  as 
where  an  executor  is  a  party. 

Stevens  v.  Hartley,  13  0.  S.  525. 

(c)  It  is  not  competent  for  a  plaintiff,  who  is  disqualified 
from  testifying  in  the  case  by  reason  of  the  decease  of  the 
defendant,  to  offer  in  evidence  against  the  executor  the  an- 
swer to  a  letter  written  by  the  decedent  concerning  the 
subject-matter  of   the   suit,   where   the    original   letter   is   not 


357  COMPETENCY     OF     PARTIES  §^79 

in  court  and  the  answer  contains  a  self-serving  declaration, 
and  would,  if  received  in  evidence,  be  in  effect  permitting 
the  plaintiff  to  testify. 

Tokrton  v.   Robinson,   13  C.  C.    (X.S.)    171,  23  C.  D.  17!). 

(d)  It  has  been  held  that  on  exceptions  to  an  adminis- 
trator's account,  the  administrator  may  testify  for  eitlier 
party.  But  where  an  heir  excepts  to  the  account  of  an  ad- 
ministrator who  dies  before  the  matter  is  heard  and  his 
executor  files  a  similar  account,  the  heir  is  incompetent  to 
testify  to  facts  which  occurred  before  the  death  of  the  ad- 
ministrator. 

In   re   Raab's  Estate,   16   0.  S.  273. 

In  re  Runyan,  7   O.  D.  236,  4  X.  P.  335. 

279.  PARTY  AGAINST  GUARDIAN. 

(a)  One  who  was  injured  through  the  negligence  of  em- 
ployes of  an  insane  OAvner  of  a  business  is  not  competent  to 
testify  against  the  guardian  of  said  insane  owner  in  an  action 
for  damages  on  account  of  such  injuries,  where  the  appoint- 
ment of  a  guardian  w^as  not  made  until  after  the  injury, 
though  the  insanity  "existed  before  and  dofondant  had  no 
knowledge  of  the  facts  of  the  case. 

Nolan  V.  Ilaberer,  3  O.  App.  45,  21  C.  C.  (X.S.)  57,  26  C.  D.  59. 

(b)  A  party  to  a  suit  is  incompetent  to  testify  as  a  Avit- 

ness  when  the  opposite  party  is  the  guardian  of  an  imbecile. 

The    word   ''insane"   will    include    "imbecile,"    although    tli'^ 

section   as   now   amended   leaves   but   the   latter   word.      And 

such  guardian  in  an  accounting  before  the  ])robate  court  is 

an  incompetent  witness  to  prove  an  alleged  claim  for  services 

rendered  by  said  guardian  to  and  for  said  vard  prior  to  the 

date  of  his  appointment  as  guardian. 

Ross  V.  Todd,  2  C.  D.  385,  4  C.  C.  1. 
See  McXicol  v.  Johnson,  20  O.  R.  85. 
In  TO  Olivfr.  0  X.  P.    (X.S.)    17S,  20  O.   D.  64. 

(c)  Where  an  action  is  l)rou<^lil  by  an  infaiii  Jlii'oi"  'i  Ms 
next  friend  for  recovery  of  damages  on  account  of  i>crs(iMal 
injuries,  the  infant  is  the  party  plaintiff  and  is  not  conipctctit 


§  280  METZLER'S    OHIO    TRIAL    EVIDENCE  358 

to  testify  where  inbecility  on  the  part  of  the  defendant  has 
intervened. 

Ransom  v.  Haberer,   13   C.  C.    (N.S.)    511,  22   C.  D.  592. 

(d)  Where  the  plaintiff  in  an  action  on  a  joint  and  several 
note  is  the  guardian  of  an  insane  person,  the  maker  of  the 
note  who  is  in  default  for  answer,  is  not  a  competent  witness 
for  his  co-defendant  to  facts  in  reference  to  a  usurious  agree- 
ment between  the  makers  and  payee  of  the  note,  which 
occurred  prior  to  the  appointment  of  such  guardian. 
Baker  v.  Jerome,  50  0,  S.  682. 

280.  PARTY  AGAINST  OTHER  REPRESENTATIVES. 

(a)  In  an  action  by  one  executor  or  administrator  against 

another,  the  parties  are.  adverse  within   the  purview   of  this 

section,  and  neither  is  competent  to  testify  against  the  other 

to  any  matter  not  within  one  of  the  exceptions  contained  in 

the  section. 

Farley  v.  Lisey,  55  0.  S.  627. 
Buckingliara  v.  Carter,  2  Disney  41. 

(b)  AVhere  a  party  to  an  action,  being  a  non-resident  of 
the  county  wherein  the  action  is  pending,  causes  his  deposi- 
tion in  the  case  to  be  taken  and  filed,  and  afterward  and 
before  trial  the  opposite  party  dies,  and  his  personal  repre- 
sentative is  substituted  in  his  place,  such  deposition  is  inad- 
missible in  evidence  on  the  trial,  to  the  same  extent  as  the 
oral   testimony   of  the   surviving   party   would   be,   if   offered 

on  the  trial. 

St.   Clair  v.  Orr,   16   O.  S.  220. 
Neville  v.  Hamho,    1    Disney  517. 
Bettman  v.  Hunt,  12  Biiii.  286. 

(c)  Parties  defendant  who  are  financially  interested  in 
the  construction  of  a  will,  and  whose  rights  will  be  affected 
by  the  decision  of  the  court,  are  not  competent  to  appear 
as  witnesses  against  trustees  of  the  estate. 

Miller  v.  Miller,  15  C.  C.  (X.S.)   481,  24  C.  D.  43. 

(d)  In  an  action  for  specific  performance  against  the  heirs 
of  the   vendor,   and   against  his   grantee  who  took   the   legal 


359  COMPETENCY     OF     PARTIES  §  281 

estate  with  notice,  it  ^vas  held  that  the  i)hiintiffs  were  incom- 
petent to  testify  to  facts  occurring  before  the  death  of  the 
grantor. 

Mosher  v.  Butler,  31  O.  S.  188. 

(e)  "Where  A  deeded  land  to  B  and  he  deeded  it  to  his 
wife  D  through  a  trustee,  and  A's  heirs  sued  D's  heirs,  claim- 
ing the  deed  was  in  trust  for  them,  it  was  held  that  plain- 
tiffs and  such  heirs  of  A  as  were  made  defendants,  but  were 
identical  in  interest  with  plaintiffs,  are  not  competent  wit- 
nesses against  D's  heirs. 

Hubbell   V.  Hubbell,   22   0.    S.   208. 

(f)  But  on  application  to  reduce  the  year's  allowance  of 
a  widow,  a  creditor  may  testify  against  the  widow,  although 
slie  is  administratrix  of  the  estate;  because  when  she  appears 
to  resist  the  effort  to  reduce  the  allowance,  she  does  so  as  a 
creditor  of  the  estate  protecting  her  own  claim  and  not  as 
administratrix. 

In  re  Rahe,   12  0.  D.  590. 

(g)  And  in  an  action  by  an  administrator  upon  a  promis- 
sory note  made  by  two  parties  defendant,  one  of  whom  was 
surety,  who  alone  sets  up  a  defense,  the  principal  is  a  com- 
petent witness  for  the  surety.  But  w'here  both  signers  of  a 
note  are  makers,  the  rule  is  different. 

Bell  V.  Wilson,  17  0.  S.  640. 

Baker  v.  Kellogg,  29  0.  S.  603. 

Brinker  v.  Sebreiber,  9   Bull.  294,  8  0.  D.  R.  759. 

Baker  v.  Jerome,  50  0.  S.  682. 

281.  PARTY  AGAINST  ASSIGNEE. 

(a)  A  person  who,  if  a  party,  would  be  restricted  in  his 
evidence  under  Sec.  11495,  when  the  ])r()|)ei-ty  or  thing  is 
sold  or  transferred  by  an  executor,  administrator,  guardian, 
trustee,  heir,  devisee  or  legatee,  shall  he  restricted  in  the 
same  manner  in  any  action  or  i)roceeding  concerning  such 
property  or  thing. 

Section    11404    (par.   5),  General  Code. 


§283  METZLER'S    OHIO    TRIAL    EVIDENCE  360 

282.  ASSIGNOR  AGAINST  REPRESENTATIVES. 

(a)  A  person  who  assigns  liis  claim  or  interest  shall  not 

testify  concerning  any  matter  in  respect  to  which  he  would 

not,  if  a  party,  be  permitted  to  testify. 

See  Section  11494    (par.  4),  Gfncral   CoJ.e. 
See  Myrea  v.   Walker,  9  0.   S.  5.38    (old  law). 

(b)  In  an  action  on  a  negotiable  instrument  by  a  trustee 
in  bankruptcy  against  the  administrator  of  decedent's  es- 
tate, the  bankrupt  is  not  a  competent  witness  for  plaintiff 
to  show  a  relation  existing  between  him  and  decedent  other 
than  that  appearing  on  the  face  of  the  instrument. 

Conett  V.  Squair,  3  0.  L.  R.  55S,  17  0.  D.  C"). 

(c)  But  in  an  action  by  the  indorsee  of  a  promissory  note 
against  the  maker,  the  executor  of  the  maker  may  compel 
the  payee  and  assignor  of  the  note  to  testify  to  facts  that 
occurred  prior  to  the  death  of  the  testator.  The  interest  of 
an  estate  may  urgently  require  that  an  executor  or  adminis- 
trator should  waive  wdiat  belongs  to  him  as  a  privilege. 

Roberts  v.   Briscoe,  44  0.  S.  596,  602. 

Xeil  V.  Cherry,  3  W.  L.  M.  31,  2  0.  D.  R.  417. 

(d)  In  an  action  between  executors  or  administrators  of 
different  estates,  a  person  who  has  been  the  predecessor  of 
one  of  the  parties  is  not,  on  that  account,  incompetent  as  a 
witness  against  the  adverse  party,  to  testify  to  facts  which 
occurred  before  the  death  of  the  latter's  testator  or  intestate. 
Such  a  case  is  not  within  the  reason  or  spirit  of  the  provision 
of  Section  11494  of  the  General  Code  which  excludes  the 
testimony  of  an  assignor  of  a  claim  in  certain  cases. 

Banning  v.  Gotshall,  62  0.  S.  210. 

283.  FIRST  EXCEPTION. 

(a)    [A  party  may  testify  to]    the   facts   which    occurred 
after  the   appointment   of  the  guardian   or  trustee   of  an   in- 
sane  person,  and  in   the   other   cases,   after  the   time   the   de 
cedent,  grantor,  assignor,  or  testator  died. 

Section   11495    (par.   1),  General  Code. 


361  COMPETENCY     v.."     PARTIES  §285 

284.  SECOND   EXCEPTION. 

(a)  When  the  action  or  i)roeeedin^  relates  to  a  contract 
made  through  an  agent  by  a  person  since  deceased,  and  the 
agent  is  comiietent  to  testify  as  a  witness,  a  party  may  testify 
on  the  same  subject.  • 

Section  11495    (par    2)     Ccncral  Code. 

(b)  When  the  foregoing  paragraph  was  somewhat  differ- 
ent, it  was  said  that  the  opposite  party  could  call  the  agent, 
and  then  he  himself  could  testify;  that  when  all  who  know 
of  a  transaction  are  living  and  present  to  testify,  the  evi- 
dence of  such  transaction  should  not  be  lost  because  some 
one,  who  never  was  a  competent  witness  to  such  matter,  is 
dead. 

Iloyt  V.  Ileister,  2   Bull.    (Supp.)    5,  7  O.  D.   R.  420,  425. 
Cf.  Wclirmann  v.  rieecli,  7  C.  C.    (X.S.)    3(17,  IS  C.  D.   12S. 

(c)  In  an  action  coming  within  the  second  exception, 
when  the  agent  through  whom  it  is  claimed  a  contract  was 
made  by  a  person  since  deceased  is  himself  a  party,  his  testi- 
mony is  subject  to  the  same  tests  of  competency  that  are 
applicable  to  the  testimony  of  o'ther  parties  w^ho  sustain  the 
same  relation  to  the  issues;  and  where  as  a  party,  he  is  ad- 
verse in  interest  to  one  who  claims  or  defends  as  devisee,  he 
is  not  competent  to  testify  as  a  witness  against  the  devisee, 
either  to  his  own  agency,  or  to  the  alleged  contract;  nor,  in 
such  case,  are  other  parties  having  a  like  adverse  interest 
competent  to  testify  to  such  matters,  as  against  the  devisee. 

Roberts   v.    Remy,    56   0.    S.    240. 

285.  THIRD  EXCEPTION. 

(a)  If  a  party,  or  one  having  a  direct  interest,  testifies  to 
transactions  or  conversations  with  another  party,  the  latter 
may  testify  as  to  the  same  transactions  or  conversations. 

Section  11405    (par.  .3),  General  Code. 

(b)  An  administrator  may  testify  against  the  adverse 
party.  And  where  an  adniini.strator  in  his  own  Ix-lialt"  testi- 
fies to  a  certain  conversation  and  an  agreement  hit wcimi  his 
intestate  and  the  o])i)()si1('   pafty.  whieh    was  inateiial    to    Ihc 


§286  METZLER'S    OHIO   TRIAL    EVIDENCE 


362 


issue,  tlie  other  party  may  testify  as  to  the  same  transaction 
and  conversation,  under  the  third  exception   to   this   section. 

Doughman   v.   Dougliman,   21    O.   S.    658. 

Rankin   v.    Ihmnan,    38    O.    S.   438. 

> 

(c)  It  is  obvious  that  the  interest  of  the  testator's  estate 
should  be  the  paramount  idea  of  the  executor ;  and  the  law 
contemplates  that  if  he  has  knowledge  that  can  be  made  to 
inure  to  the  benefit  of  the  estate,  he  will  be  ready  to  bear 
witness,  though  in  so  doing  he  must  waive  the  privilege  of 
excluding  the  opposite  party  from  testifyiiig  and  open  the 
door  to  his  admission. 

Roberts   v.  Briscoe,  44  O.  S.  596,  603. 

(d)  In  an  action  brought  to  recover  a  money  judgment 
against  the  administrator  of  an  estate,  the  widow  of  the 
intestate,  or  his  heirs  at  law,  are  not  necessary  or  proper 
parties  thereto.  And  if  on  the  application  of  the  widow  she 
is  made  a  party  defendant,  and  files  an  answer,  setting  up 
defenses  to  a  judgment  against  the  estate,  and  on  behalf  of 
the  administrator  testifies  to  transactions  occurring  before 
the  death  of  the  intestate,  she  is  not  a  party  to  the  action 
in  such  sense  as  Avould  entitle  the  plaintiff  to  testify  to  the 
same  transaction  under  the  third  clause  of  this  section. 

Williams   v.  Longley,   3  C.   C.  50S,  2   C.   D.   202. 

286.  FOURTH  EXCEPTION. 

(a)  If  a  party  offers  evidence  of  conversations  or  admis- 
sions of  the  opposite  party,  tlie  latter  may  testify  concerning 
the  same  conversations  or  admissions. 

Section   11495    (par.  4),  General  Code. 

(b)  Conversations  and  admissions  concerning  which  a 
party  may  testify  under  the  provisions  of  the  fourth  excep- 
tion are  those  orally  made  by  him.  This  exception  does  not 
authorize  him  to  testify  concerning  a  written  statement  in 
the  nature  of  a  settlement  between  the  parties  that  may  be 
adduced  against  him  on  the  trial. 

Jackson  v.  Ely,  57  O.  S.  450. 


363  COMPETENCY    OF     PARTIES  §287 

(c)  III  a  proceeding  to  recover  the  concealed  property  of 
an  estate,  it  i.s  error  to  treat  the  defendant  as  a  party  to  a 
civil  action  and  therefore  incompetent  as  a  witness.  Even 
if  the  section  ajiplies,  the  defendant  should  be  allowed  to 
testify  under  exceptions  three  and  four. 

Leonard  v.  State,  ex  rcl.,  20  C.  C.   (N.S.)    340,  3  0.  App.  313. 

Cf.  Cotton  V.  Ashley,  7  C.  D.  242,   13  C.  C.  535,  538. 

287.  FIFTH  EXCEPTION. 

(a)  In  an  action  or  proceeding  by  or  against  a  partner  or 
joint  contractor,  the  adverse  party  shall  not  testify  to  trans- 
actions with,  or  admissions  by,  a  partner  or  joint  contractor 
since  deceased,  unless  they  were  made  in  the  presence  of  the 
surviving  partner  or  joint  contractor.  This  rule  applies  Avith- 
out  regard  to  the  character  in  which  the  parties  sue  or  are 
sued. 

Section   11495    (par.  5),  General  Code. 

See  Baxter  v.   Leitli,  2S  I).  S.  84,  decided   under  a  former  statute. 

(b)  Under  the  fifth  exception,  in  an  action  upon  a  promis- 
sory note,  Avhen  the  survivor  of  two  joint  ])ayees  and  the 
administrator  of  the  other  are  plaintiffs,  an  adverse  party 
may  testify  to  admissions  made  or  acts  done  by  either  paj^ee 
in  the  presence  of  the  survivor. 

TTarrison  v.  Neely,  41   0.   S.  334. 

(c)  The  fifth  exception  renders  inadmissible  the  evidence 
of  the  i)resident  of  a  corj^oration  as  to  a  transaction  between 
himself  on  behalf  of  such  corporation  and  a  deceased  partner 
on  ))elialf  of  the  firm,  which  is  the  adverse  party  to  such 
litigation. 

French  v.  Crrkin,  30  C.  D.  68. 

Cf.  Milling  Co.  v.  Bunn,  75  O.  S.  270. 

(d)  But  where  a  surviving  partner  brought  an  action  on 
a  note  made  to  his  firm  against  two  makers  as  individuals 
and  not  as  partners,  and  one  of  them  is  in  default  foi-  an- 
swer and  makes  no  defense,  he  is  a  ((niiitcfciif  witness  for 
the  other  as  to  transactions  with   the  deceased  partner. 

■Rrinker  v.   Schreiber,  0   Bull.   204.   R  O.    D.   B.   7r.O. 
Cf.   Baker   v.  Jerome,  50  0.  S.  082. 


§288  METZLER'S    OHIO    TRIAL    EVIDENCE  364 

288.  SIXTH  EXCEPTION. 

(a)  If  the  claim  or  defense  is  founded  on  a  book  account, 

a  party  may  testify  that  the  hook  is  his  account-book,  that 

it  is  a  boolc  of  original  entries,  that  the  entries  therein  were 

made  by  himself,  a  person  since  deceased,   or  a  disinterested 

person,   not   a  resident   of  the  county.      The   book  shall  then 

be  competent  evidence;  and  [such  book]  may  be  admitted  in. 

evidence   in   any   case,   without   regard   to    the   parties,    upon 

like  j)roof  by  any  competent  witness. 

Section  11405    (par.  6),  General  Code. 
See  Chap.  XXVI  herein. 

(b)  A  book  account  to  be  admissible  under  this  section 
must  be  a  book  of  original  entries  made  concurrently  with 
the  transactions  by  a  person  having  knowledge  thereof,  and 
be  corroborated  by  his  testimony,  if  living  and  accessible. 

Kennedy  v.  Dodge,  10  C.   D.  360,  19   C.  C.  425. 

(c)  Entries  made  but  once  a  year  for  the  whole  year  for 
services  at  so  much  a  week  for  ten  years  are  not  admissible 
after  the  debtor's  death,  because  not  contemporaneous  and 
not  itemized;  but  the  error  is  cured  by  proof  that  the  debtor 
often  saw  the  entries  and  assented  to  them. 

Bogart  V.  Cox,  4  C.  C.  289,  2  C.  D.  551. 

(d)  A  book  of  plaintiff's  account  of  work  done  for  de- 
ceased, with  her  evidence  that  it  was  such  book  and  that  the 
entries  were  made  by  her  father  as  she  gave  him  the  items, 
and  the  father's  evidence  to  the  same  effect,  was  held  not 
competent  in  an  actiou  against  an  executor. 

McGowan  v.  Mock,  2G  Bull.  265. 

(e)  This  section  which  permits  a  party  to  offer  his  books 

in  an  action  on  a  book  account  does  not  apply  in  an  action 

for  money  lent  where  the  entry  is  for  a   huge  sum.     Such  a 

transaction  is  not  the  proper  subject  of  a  book-account. 

Page  V.  Zehring,  6  Bull.  200,  8  0.  D.  E.  211. 
ITough   V.  Henk,    8   C.    C.    3r,4,  4   C.   D.  69. 
See   Cram   v.    Spear,    8    Oh.   494. 


365  COMPETENCY     OF     PARTIES  §290 

289.  SEVENTH    EXCEPTION. 

(a)  If  after  testifying  orally,  a  i>arty  dies,  the  evidence 
may  be  i)rovcd  by  either  party  on  a  furtlier  trial  of  the  case, 
"whereupon  the  opposite  party  may  testify  to  the  same 
matters. 

Section   114!)5    (par.   7),  General  Code. 
Hoover  V.  Jennings,  11  0.  S.  G24    (old  law). 

(b)  This  paragraph  refers  to  a  further  trial  of  the  same 
case.  The  testimony  of  an  incompetent  Avitness  does  not  be- 
come competent  upon  the  introduction  of  testimony  of  the 
defendant's  intestate  taken  in  a  former  action  between  the 
parties.  And  the  former  testimony  of  a  deceased  party  can- 
not be  introduced  by  the  adverse  i)arty  and  then  contra- 
dicted, "when  the  introduction  is  for  the  uurpose  of  qualify- 
ing his  own  incompetent  witness. 

Conett  V.  Squair,  3  0.  L.  R.  .lOS,   17  O.   1).  d"). 

(c)  After  trial  at  which  both  plaintiff  and  defendant  testi- 
fied, a  new  trial  was  granted;  then  defendant  died  and  his 
administrator  was  substituted  as  defendant.  At  the  next 
trial  the  plaintiff,  in  order  that  he  himself  might  testify 
under  exception  seven,  first  offered  the  testimony  of  defend- 
ant given  at  the  first  trial.  The  testimony  was  admitted, 
and  plaintiff  was  allowed  to  testify. 

Matthews   v.    Heider,   22   0.   D.    399. 

290.  EIGHTH  EXCEPTION. 

(a)  If  a  party  dies  and  his  deposition  be  offered  in  evi- 
dence, the  opposite  party  may  testify  as  to  all  competent 
matters  therein. 

Reotion   1140.5    (par.  8),  General  Code. 
Hoover  v,  Jennings,    11  0.  S.   624    (old  law). 

(b)  "Where  a  party's  deposition  is  taken  and  he  dies,  and 
his  executor  refuses  to  off'er  the  d('i)ositi(m  in  cvidcnci'.  thus 
excluding  the  adverse  party  as  a  witness,  it  is  not  misconduct 
for  the  attorney  of  such  adverse  partv  to  comment  upnii  it, 
if  no  reference  is  made  to  the  contents  of  the  deposition. 

Cof.riPr  V.  West,  3  Bull.  431,  7  O.  T).  K.  470. 


§291  METZUER'S    OHIO   TRIAL    EVIDENCE  366 

291.  NINTH  EXCEPTION. 

(a)  Nothing  in  this  section  shall  apply  to  actions  for 
causing  death,  or  actions  or  proceedings  involving  the  valid- 
ity of  a  deed,  will,  or  codicil. 

Section   11495    (par.  9),  General  Code. 
Wolf  V.  Powner,  30  0.  S.  472    (old  law). 
Mosher  v.  Butler,  31  0.  S.  188    (old  law). 

(b)  An  infant  plaintiff  in  an  action  by  his  next  friend  for 
personal  injuries,  where  defendant  lias  become  insane,  is  not 
rendered  competent  as  a  witness  by  the  exception  to  the 
statute  which  provides  that  nothing  therein  contained  shall 
apply  to  actions  for  causing  death.  This  exception  was 
created  to  enable  a  defendant  to  testify  in  a  case  brought 
against  him  for  causing  the  death  of  a  person,  where  the 
administrator  of  the  deceased  is  the  adverse  party. 

Ranson  v.  Haberer,   13   C.   C.    (X.S.)    511,  22   C.   D.   592. 

(c)  In  an  action  brought  against  a  trustee  under  a  will 

to  rescind  a  conveyance  to  a  testator  on  the  ground  of  fraud, 

the  adverse  parties  are  not  incompetent  to  testify. 

Murdock  V.  McNeely,  1  C.  C.  16,  1  C.  D.  9. 
Cf.  McNicoI  V.  Johnson,  29  0.  S.  85    (old  law). 

(d)  An  action  by  an  administrator  against  a  grantee  to  re- 
cover the  value  of  lands  conveyed  by  his  decedent  in  fraud 
of  creditors,  which  land  the  said  grantee  has  conveyed  to  an 
innocent  purchaser,  is  an  action  involving  the  validity  of  a 
deed,  and  the  grantee  is  competent  to  testify  generally. 

Doney  v.  Clark,  55   0.   S.  294. 

(e)  An  action  to  enforce  a  trust  is  not  an  action  involving 
the  validity  of  a  deed  within  the  purview  of  this  clause.  The 
object  of  the  suit  is  not  to  invalidate  the  deed,  but  to  ascer- 
tain the  nature  of  the  estate  it  conveyed,  give  it  effect  ac- 
cording to  the  intention  of  the  parties,  and  enforce  their 
rights  as  determined  by  the  application  of  the  law  to  it.  in 
the  light  of  the  circumstances  under  which  it  was  made. 

Paddock  v.  Adams,   56  0.   S.  242,  248. 


367  COMPETENCY    OF     PARTIES  §293 

252.  REASON  AND  SPIRIT  CLAUSE. 

(a)  And  -when,  a  case  is  plainly  within  the  reason  and 
spirit  of  the  next  three  preceding  sections  (11493  to  11-495 
of  tlie  General  Tode),  tliough  not  Avithin  the  strict  letter, 
their  principles  sliall  be  applied. 

Section  11405   (par.  9),  General  Code. 

(b)  It  -vvonld  be  difficult  to  say  what  is  the  scope  of  this 
clause  in  advance  of  cases  as  they  arise.  If  a  case  is  pro- 
vided for  by  the  terms  of  either  of  the  sections,  no  occasion 
can  arise  for  invoking  the  spirit  and  reason  of  the  statute 
to  supply  the  omission  of  its  letter  or  terms. 

Cocliran  v.  Ahnack,  39  0.  S.  314,  316. 
See  Milling  Co.  v.  Bunn,  75  0.  S.  270,  276. 

(c)  The  sections  under  consideration  are  in  pari  materia. 
They  are  sections  of  a  revised  code  upon  one  subject,  and 
are  to  be  construed  as  a  single  statute;  and  treated  as  a 
single  statute,  it  is  to  be  so  construed  that  all  its  provision.s 
may  be  harmonized  if  possible. 

Roberts  v.   Briscoe,  44  0.  S.  596,  600. 

253.  COMPELLING  A  PARTY  TO  TESTIFY. 

(a)  At  the  instance  of  the  adverse  party,  a  party  may  be 
examined  as  if  under  cross-examination  either  orally  or  by 
deposition,  like  any  other  witness.  If  the  party  be  a  cor- 
poration, any  or  all  the  officers  thereof  may  be  so  examined 
at  the  instance  of  the  adverse  party.  The  party  calling  for 
such  examination  shall  not  thereby  be  concluded  but  may 
rebut  it  by  counter-testimony. 

Section    11497,   General    Code. 
In  re   Rauli,   65  O.   S.   128. 

(b)  The   effect   of  the   statute   is  to   antliorize   a    i>arty   to 

call  the  adverse  party  and  cross-examine  him;  and  the  right 

of   counsel   for   the   party    thus   called,    in    e:amining   him.    i>^ 

only  what  it  would  be  if  he  had  boon  cross-c\aniinc<l   in   Ihc 

ordinary  way. 

Simon  V.  Moonoy,  22  C.  C.  271,  12  C.  D.  73. 
See   LepfT   v.    Drake,    1    O.    S.   2S6,   9. 


§293  METZLER'S   OHIO   TRIAL   EVIDENCE  368 

(c)  It  was  held  under  a  similar  statute  that  the  character 
of  a  party,  as  adverse  or  otherwise,  was  to  be  determined, 
not  by  his  position  upon  the  docket,  or  in  the  title  of  the 
cause,  but  by  reference  to  his  relations  as  shown  by  his 
interests  involved  in  the  case. 

Allen  V.  Miller,  11  0.  S.  374,  8. 

(d)  Where  a  party  to  an  action  is  called  upon  and  intro- 
duced as  a  Avitness  by  the  adverse  party,  the  objection  to  his 
competency  is  Avaived  :  and  he  becomes  competent  as  a  wit- 
ness on  the  trial  for  all  purposes, 

Legg  V.  Drake,   1   0.  S.  280. 

(e)  A  party  may  take  the  deposition  of  an  adverse  party 
notwithstanding  the  latter  is  within  the  jurisdiction  of  the 
court,  and  probably  will  be  present  at  the  trial  of  the  case, 
and  is  not  at  the  time  sick  or  unable  to  attend  court.  An 
abuse  of  the  process  of  the  court  will  not  be  presumed,  but 
must  be  proved. 

In   re  Ilafer,  21   C.  C.  445,   12    C.  D.    102. 

State,  ex  rel.,  v.  Cost,  22  Bull.  230,  10  0.  D.  R.  019. 

In  re  Tcbiiison,  9  O.   D.  703,  7  N.  P.   105. 

(f)  Eut  where  it  is  shown  that  the  object  of  the  deposi- 
tion is  merely  to  discover  what  the  party  will  testify  to  on 
his  own  behalf,  l.e  can  not  be  compelled  to  jrive  his  deposi- 
tion. And  a  (''.'.^fondant  is  not  entitled  to  take  the  deposition 
of  the  plair.tiff  Avlien  the  defendant  asks  that  the  cross- 
examination  be  allowed  for  the  purpose  of  discovery  and  to 
enable  him  to  develop  his  case. 

In  re  Hnmplin:',  7  C.  D.  603,  14  C.  C.  517. 
In  re  Pfirman,  1    X.  P.   127,  1  O.  7\   177. 
Thomas  v.  Bcehe,  8  O.  D.  231,  5  N.  P.  32. 

(g)  Where  the  complaint  in  a  proceeding  to  remove  a 
prosecuting  attorney  from  office  is  based  entirely  upon 
charges  of  crimes,  it  is  error  to  require  the  defendant  to 
testify.  The  person  so  charged  shall  at  his  own  request,  but 
not  otherwise,  be  a  competent  witness. 

Killits  V.  State,  es  rel.,  19  C.  C.  7-10,  10  C.  D.  722. 


CHAPTER  XXI. 

EXAMINATION  OF  WITNESSES. 

204.  Direct — Leading  questions. 

2!tr).  Inipeacliment  of  own  witness. 

2!IB.  Fortifying  own  witness. 

2!>7.  Rcfresiiing  memory. 

2!)8.  Cross-examination — Tlie  riglit. 

20!)    Cross-e.xaminat  ion — Illustrations. 

300.  Cross-examination  of  ainused. 

301.  Cross-examination — Error. 

302.  Limits  of  cross-examination. 

303.  Bias  and  prejudice. 
304    Disparaging  questions. 

305.  Collateral  evidence  binding. 

306.  Answer  as  to  conviction. 

307.  Privilege  against  incrimination. 

308.  Refusing  to  answer. 
300.  Reexamination. 
310.  Recalling  witnesses. 

294.  DIRECT— LEADING  QUESTIONS. 

(a)  As  a  g:eneral  rule,  a  party  will  not  be  allowed  to  ask 
his  own  witness  a  leading  question;  that  is,  one  that  sug- 
gests to  the  witness  tiie  answer  desired.  But  where  a  wit- 
ness is  unwilling,  or  hostile  to  the  party  calling  him,  or 
stands  in  a  situation  which  makci  him  necessarily  adverse 
to  such  party,  his  examination  in  chief  may  be  allowed  to 
assume  soniething  of  tlie  form  and  character  of  cross-exami- 
nation, at  least  to  the  extent  of  permitting  leading  questions. 

Stull  V.  Wilcox,  2  0.  S.  ofiO. 
Hurley   V.  State,   40  O.    S.   :520,  22. 

(b)  The  allowing  or  refusing  of  leading  questions  in  the 
direct  examination  must  very  largely  be  subject  to  the  con- 
trol of  the  trial-court  in  the  exercise  of  a  sound  discretion. 
And   the  mere  fact  that  leading  questions   were   imj)roperly 

369 


§  294:  METZLER'S    OHIO    TRIAL    EVIDENCE  370 

allowed,  although  allowed  as  of  right,  is  not  reversible  error 
when  in  no  way  prejudicial. 

Evans  v.   State,   24  0.   S.  458. 

DeVeaux   v.    Ck'iiiens,  9    C.   D.  647,    17   C.   C.   33. 

Railway   v.   Moreland,    12   C.   D.    612. 

(c)  After  having  exhausted  the  memory  of  a  witness  as 
to  a  conversation,  his  attention  may  be  drawn  to  a  particular 
subject  of  that  conversation  ;  but  it  is  error  to  permit  a  ques- 
tion suggesting  to  him  the  several  statements  desired  and 
secure  his  assent  thereto. 

Hughes  V.  state,  9   C.  C.    (X.S.)    309,  19   C.  D.  237. 
Cf.  Railway   v.  Moreland,   12   C.   D.   612. 

(d)  And  if  a  witness  under  the  embarrassment  of  an  ex- 
amination forgets  facts  Avithin  his  knowledge,  ample  oppor- 
tunity should  be  afforded  for  eliciting  the  facts  fully.  It  is 
not  improper  for  a  party  to  ask  his  own  witness  if  he  had 
heard  of  a  certain  transaction,  Avhen  the  object  of  the  ques- 
tion is  to  refresh  the  memory  of  the  Avitness,  and  assist  him 
in  fixing  a  date. 

Hurley  v.   State,   46  0.   S.  320.  23. 

Teleplione  Co.  v.  .Tacksoii.  4  C.  C.    (X.S.)    3Sfi,   16  C.  D.  89. 

(e)  Leading  questions  may  be  put  to  a  witness  called  to 
contradict  a  former  Avitness  Avho  has  stated  that  such  and 
such  expressions  Avere  used  or  certain  things  Avere  said.  In 
such  cases,  it  is  the  usual  practice  to  ask  Avhether  those  par- 
ticular expressions  Avere  used  or  those  things  Avere  said,  Avith- 
out  putting  the  question  in  a  general  form  by  asking  Avhat 
Avas  said.  The  general  form  might  bring  out  much  irrelevant 
matter.  But  leading  questions  are  improper  Avhcn  a  Avitness 
is  being  impeached  by  shoAving  contradictory  statements. 

Tnterurban  Co.  v.  ILiiiics,  21   C.  D.  -IC-,.    12  C.  C.    (X.S.)    17,  21. 

(f)  Ordinarily,  the  cross-examination  must  Avait  until  the 
direct  examination  is  closed ;  but  where  there  is  a  question 
as  to  the  competency  of  a  Avitness  or  A\'hether  the  matter  is 
privileged,  such  as  the  evidence  of  a  physician,  or  a  laAA-yer, 
or  priest,  or  Avhether  a  conversation  occurred  betAveen  hus- 
band and  Avife  in  the  presence  of  third  parties,   cross-exam i- 


371  EXAMINATION    OF    WITNESSES  §295 

nation  is  permitted  before  the  testimony  of  siu-li  witness  upon 
tlie   real  question   is   admitted. 

Moore  v.  Caldwell,   17   C.  D.   440,  6  C.  C.    (N.S.)    4S;4,  402. 

295.  IMPEACHMENT  OF  OWN  WITNESS. 

(a)  A  party  who  calls  a  witness  and  is  taken  by  surprise 
by  his  unexpected  and  unfavorable  testimony,  may  inter- 
rogate him  in  respect  to  declarations  and  statements  previ- 
ously made  by  him  which  are  inconsistent  with  his  testimony, 
for  the  purpose  of  refreshing  his  recollection,  and  inducing 
him  to  correct  his  testimony,  or  explain  his  ai)parent  incon- 
sistency; and  for  such  purpose  his  previous  declarations  may 
be  repeated  to  him,  and  he  may  be  called  upon  to  say 
whether  they  were  made  by  him.  In  case  the  witness  denies 
having  made  such  statements,  or  his  answer  is  ambiguous 
concerning  them,  it  is  not  competent  for  the  party  calling 
him  to  prove  them  by  other  witnesses. 

HurU-y  v.  State,   40  O.   S.  320. 

Railway  v.   Hall,    10   O.    D.    02,   .3   O.   L.    K.   .104. 

Prcscott   V.    All.rcclit,   21    ('.   C.    iX.S.)    lOS. 

(b)  A  party  Avill  not  be  permitted  to  ask  his  own  witness 
if  he  has  not  made  certain  statements  out  of  court,  unless 
such  witness  has  testified  to  facts  inconsistent  therewith,  and 
the  party  has  been  surprised  by  such  testimony.  A  party 
calling  a  witness  who  does  iu)t  ai)pear  to  have  any  interest 
in  the  controversy  Avill  not  be  permitted  to  cross-examine 
him  upon  the  mere  assumption  that  he  is  adverse. 

ruMish   V.   WciisH,  8   C.   D.   141,   If)   C.   r.    133. 

(c)  If  tlie  hostility  of  plaintiff's  Avitness  develops  on  his 
cross-examination,  it  is  competent  for  i)laintiff  on  re-exami- 
nation of  the  witness  to  prove  by  him  tluit  lie  nuule  contra- 
dictory statements  before  the  trial.  Such  examinations  afford 
valuable  aid  in  proving  the  conscience  of  a  Avitness,  in  re- 
freshing his  recollections,  and  in  giving  him  an  opportunity 
of  correcting  his  testimony  and  explaining  liis  apparent  in- 
consistency. And  such  evidence  nuiy  be  admissible  as  sub- 
stantive evidence  of  facts  in   issue. 

::iistill   V.   TlioriitoM,   22   C.   C.   OOS,    12    C.    I).   ;V.M. 


§296  METZLER'S   OHIO   TRIAL   EVIDENCE  372 

(d)  ^Yliere  a  witness  for  plaintiff  testified  on  cross-exami- 
nation to  additional  facts  damaging  to  plaintiff's  case,  the 
plaintiff  Avas  not  permitted  to  show  by  other  witnesses  that 
the  witness  had  omitted  to  state  those  facts  when  called  upon 
outside  of  court  to  state  all  that  he  knew  about  the  case, 
because  a  party  may  not  impeach  his  own  witness. 

Katafiasz  v.  Electric  Co.,  1  C.  C.    (X.S.)    129,  14  C.  D.  127. 

(e)  A  party  is  not  bound  by  the  unfavorable  testimony 
of  his  own  witness,  but  may  prove  his  case  by  other  evidence. 
He  is  not  precluded  from  proving  any  fact  relevant  to  the 
issue  by  any  competent  evidence,  though  it  be  a  direct  con- 
tradiction of  the  testimony  of  a  former  witness  called  by  him. 
Hurley  v.   State,  4G   0.  S.  320,   2. 

296.  FORTIFYING  OWN  WITNESS. 

(a)  When  a  Avitness  makes  a  statement  on  direct  exami- 
nation, the  narration  of  an  independent  circumstance  to 
fortify  his  own  statement  is  improi)er  and  should  be  ex- 
cluded. A  witness  may  fortify  his  statement  only  Avhen  his 
recollection  is  tested  on  cross-examination. 

Harris  v.  State,  20  C.  C.   (N.S.)    .l.-fi.  24  C.  D.  187. 
r.reck  V.  State,  4  C.  f.   KJit,  2  V.  1).  477. 
Durance  v.   State,   16  C.  C.    (N.S.)    20,   27  C.   D.   287. 
Cf.  Jones  V.  State,  54  O.  S.  1. 

(b)  "Where  in  a  prosecution  for  a  sale  of  liquor  to  a  minor, 
the  bartender  has  testified  unequivocally  that  the  owner  was 
absent  at  the  time  of  the  sale,  it  is  proper  to  exclude  a  fur- 
ther question  as  to  any  particular  reason  for  knowing  that 
the  owner  was  not  present. 

Harris    v.   State,   20   C.   G.    (X.S.)    356,   24   C.   D.   1R7. 

(c)  After  a  banker  as  an  expert  had  testified  on  direct 
examination  that  the  signature  to  an  alleged  will  was  forged, 
he  was  asked  if  he  would  pay  a  check  so  signed;  and  he 
answered  he  would  not.  It  was  held  that  the  question  was 
improper. 

Breck  v.   State,  4   C.  C.  160,  2  C.  D.  477. 


373  EXAMINATION    OF    WITNESSES  §297 

(d)  It  is  improper  for  counsel  of  accused  to  ask  his  own 
■witness  in  chief  what  his  opinion  Avould  be  as  to  the  sanity 
of  defendant  if  he  should  hear  tliat  he  had  comniitted 
murder. 

Tliurman  v.  State,  2  C.  D.  46G,  4  C.  C.  141. 

(e)  If  a  witness  testifies  that  he  saw  and  recognized  the 
accused  at  a  certain  time  and  place,  he  can  not  be  corrobo- 
rated by  the  testimony  of  one  who  says  that  the  former  wit- 
ness told  him  of  the  recognition, 

Kose  V.  state,  7   C.  D.  2m,   13  C.  C.  342. 

297.  REFRESHING  MEMORY. 

(a)  A  witness  may  refresh  and  assist  his  memory  by  the 
use  of  a  written  instrument,  or  memorandum,  or  entry  in  a 
book,  whether  the  same  be  admissible  in  evidence  or  not,  or 
be  an  original  or  a  copy,  or  made  by  the  witness  or  a  third 
person.  But  after  thus  refreshing  his  memory,  he  must  speak 
to  the  facts  from  his  own  recollection ;  for  if  he  can  then  only 
testify  to  inferences,  or  to  his  belief  or  opinion  drawn  from 
the  instrument  or  memorandum,  and  not  from  his  recollection 
thus  refreshed,  his  testimony  can  not  be  received.  (See  Index 
for  Entries  in  Course  of  Business.) 

Swan's   Treatise,   page   120. 

.See  Traction  Co.  v.  Hackett,  fi  0.  App.  07,  2S!  O.  C.  A.  506,  30  C.  D.  208. 

(b)  A  witness  may  refresh  his  memory  from  a  copy  of 
items  of  original  entries  made  by  himself  in  a  book  which  has 
been  lost,  where  it  appears  that  the  copy  was  written  l)y  tlie 
attorney  as  the  items  were  read  off  to  him  by  the  witness  from 
the  original  entries,  and  was  afterward  compared  by  the  at- 
torney reading  the  copy  and  the  witness  the  original,  and 
found  by  them  to  correspond. 

INlearl    v.    McGraw,    10    0.    S.    .'>5. 
Cf.    Smiley    v.    Dewey,    17    Oii.    1.16. 

(c)  An  employe  of  an  insurance  company  may  testify  as 
to  notices  sent  by  him  to  the  assured  of  the  maturity  of  pre- 
mium notes,  and  also  as  to  the  form  of  notice  in  general  use 
by  his  company  at  that  time  after  refreshing  his  memory  from 
the  books. 

Insurance  Co.  v.  Morrow,  8  C.  D.  410.  10  C.  C.  S.ll. 


§298  METZLER'S   OHIO   TRIAL    EVIDENCE  374 

(d)  But  Avhcie  a  statement  of  facts  alleged  to  have  oc- 
curred a  year  previously  is  entered  in  a  memorandum  book, 
and  the  person  making  the  entry  brings  suit  involving  the 
truth  of  the  matters  so  stated,  and  while  the  suit  is  pending, 
the  book  becoming  worn,  he  copies  the  statement  into  an- 
other book,  but  is  unable,  except  as  aided  by  the  writing,  to 
testify  to  material  matters  therein,  he  should  not  be  permitted, 
if  objection  is  made,  to  use  such  copy  while  testifying  as  a 
witness  in  the  cause.  Where  the  original  memorandum  Is 
used,  it  must  appear  that  the  person  who  prepared  it  made  i^ 
at  a  time  when  he  had  a  distinct  recollection  of  the  facts,  and 
ante  litem  motam ;  and  undoubtedly  the  latter  condition  is 
equally  indispensable  where  the  memorandum  produced  is  a 
copy. 

Lovell  V.  Wentworth.  30  O.  R.  614,  7. 

Cf.  Traction  Co.  v.  Hiukett.  U  O.  App.  07,  2S  O.  C.  A.  506,  30  C.  D.  208. 

(e)  A  father  produced  a  memorandum  of  the  dates  of  the 
birth  of  his  children,  which  had  been  made  by  himself  from 
memory  a  few  months  before  the  trial,  and  Avas  permitted  to 
testify  that  it  appeared  that  the  prosecutrix  was  born  on  a 
certain  date.  It  was  held  that  the  recollection  of  a  witness 
can  not  be  corroborated  in  that  wa5^ 

Jonos  V.   State,  54   0.   S.  1,   9. 

298.  CROSS-EXAMINATION— THE  RIGHT. 

(a)  The  term  "cross-examination"  imports  a  leading  and 
searching  inquiry  of  the  witness  for  further  disclosures.  And 
inasmuch  as  it  has  for  its  object  the  disclosure  of  not  merely 
the  extent  and  degree  of  accuracy  of  the  witness's  knowdedge, 
as  well  as  the  means  of  his  knowledge,  but  also  his  motives, 
inclinations,  powers  of  memory,  and  relative  situation  in  re- 
spect to  the  parties,  and  the  subject-matter  of  the  investiga- 
tion, it  becomes  an  important  test  of  the  credibility  of  the 
Avitness. 

Legg  V.   Drake,   1   0.  S.   286,   92. 

(b)  The  importance  of  the  right  of  full  cross-examination 
of  an  adverse  witness  can  scarcely  be  over-estimated.  As  a 
test  of  the  accuracy,  truthfulness,  and  credibility  of  testimony, 


375  EXAMINATION    OF    WITNESSES  ^^  299 

it  is  invaluable.     It  is  the  clear  riglit  of  a  party  cross-examin- 
ing   a    Avitness    to    elicit    suppressed    facts    which    weaken    or 
qualify  the  case  of  the  party  examining  in  chief,  or  support 
the  case  of  the  cross-examining  party. 
^ra^tin   v.   Eldcn.   32   O.   S.  2S2.  287. 

(c)  Where  a  witness  in  his  examination  in  chief  testifies 
to  the  existence  of  a  material  fact,  which,  when  established,  is 
conclusive  between  the  parties,  questions  which  call  upon  the 
witness  to  reaffirm,  qualify  or  deny  his  statements  in  chief  as 
to  the  existence  of  such  fact,  are  within  the  just  limits  of  a 
cross-examination,  and  it  is  error  to  exclude  tliem.  A  witness 
may  be  cross-examined  as  to  his  examination  in  chief  in  all 
its  bearings,  and  as  to  whatever  goes  to  explain  or  modify 
Avhat  he  has  stated  in  his  examination  in  chief.  The  right  to 
cross-examine  extends,  in  any  view,  to  all  matters  connected 
with  the  res  gestae. 

Phillips   V.   Elwell,   14  0.   S.  240. 

:\Iartin   v.    Elden,    32    O.    S.    282. 

299.  CROSS-EXAMINATION— ILLUSTRATIONS. 

(a)  On  the  issue  whether  poison  was  administered  through 
the  negligence  of  a  physician,  or  intentionally  by  the  accused, 
after  the  state  had  shown  in  rebuttal  by  a  druggist  that  the 
physician  was  skillful  and  careful,  the  accused  may  cross- 
examine  as  to  the  extent  and  character  of  the  druggist's  deal- 
ings from  which  the  opinion  is  formed.  (For  similar  cases, 
see  Character  in  Index.) 

Drcsback  v.   State,   38  0.   P.  365. 

(b)  If  one  of  several  defendants  jointly  indicted  for  a 
felony  is  tried  separately,  and  the  prosecuting  witness  testi- 
fies in  chief  that  the  offense  was  committed  by  several  per- 
sons acting  together,  and  testifies  to  the  identity  of  the  de- 
fendant, it  is  proper  for  the  defense  on  cross-examination  to 
inquire  .as  to  the  identity  of  the  others;  and  it  is  error  for  the 
court  to  refuse  to  permit  it. 

Morpan   v.    State,   48   O.   S.   371. 

See   UeCarnp    v.    Arcliibald,    ;">()    O.    S.    618,   621. 


§  299  METZLER'S    OHIO    TRIAL    EVIDENCE  376 

(c)  In  a  trial  for  homicile,  a  witness  oiiered  by  defendant 
to  prove  a  quarrel  with  the  deceased  may  be  asked  on  cross- 
examination  whether  anything  occurred  there  in  deceased's 
conduct,  language  or  manner  to  arouse  anybody. 

Zeltner  v.  Ptate,  13  C.  C.   (X.S.)   417,  22  C.  D.  102. 

(d)  It  is  competent  to  ask  a  witness  on  cross-examination 
how  he  was  employed  during  the  time  of  the  transaction  he 
has  detailed  in  his  examination  in  chief.  This  would  tend  to 
show  whether  the  wdtness  was  situated  so  that  he  was  able  to 
note  all  that  passed,  whether  his  attention  was  directed  solely 
to  the  parties,  or  whether  he  was  engaged  in  anything  else 
that  occupied  a  part  of  his  attention;  it  might  tend  to  cast 
light  upon  the  distinctness  of  his  recollection. 

Stewart  v.  State,  in  Oli.  302.  304. 

(e)  In  an  action  on  a  claim  against  an  administrator,  a 
witness  testified  on  behalf  of  the  plaintiff  that  the  claim  was 
returned  with  a  letter  in  which  the  claim  was  rejected,  and 
the  defendant  was  not  allowed  to  cross-examine  the  witness  as 
to  the  letter,  nor  to  introduce  the  letter  in  evidence.  It  was 
held  that  the  action  of  the  court  was  erroneous. 

Yager  v.  Greiss,  1   C.  D.  200.  1  C.  C.  r>31. 

(f)  In  an  action  of  slander  it  is  error  to  exclude  defend- 
ant's cross-question  as  to  whether  the  slanderous  words  were 
not  hypothetical.  And  where  a  witness  has  testified  that  the 
plaintiff  in  an  action  for  malicious  prosecution  tried  to  throw 
suspicion  on  a  person,  by  saying  that  he  must  have  burned 
certain  w^heat,  and  that  everybody  said  so,  the  witness  may, 
on  cross-examination,  be  asked  what  reasons  were  given  by 
persons  at  the  time  for  such  suspicions. 

Tier   V.    Cromer,    Wriiiht    441. 
Ash   V.  Marlow,  20   Oh.    11!'. 

(g)  But  it  is  not  competent  on  cross-examination  of  a  wit- 
ness called  to  prove  that  a  certain  contract  was  within  the 
legitimate  business  of  an  express  company,  to  ask  the  witness 
if  he  had  ever  heard  of  such  a  contract  being  made  by  such  a 
company,  when  the  witness  had  only  testified  of  his  knowledge 
and  not  of  his  information. 

Adams  v.   Brown,    16  O.  S.   75. 

Cf.  Insurance  Co.  v.  Tobin,  32  O.  S.  77,  89. 


377  EXAMINATION    OF    WITNESSES  §301 

300.  CROSS-EXAMINATION  OF  ACCUSED. 

(a)  "Where  upon  a  trial  of  an  indictment  the  defendant 
offers  himself  as  a  witness  and  testifies  in  his  own  behalf,  he 
thereby  subjects  himself  to  the  same  rules,  and  may  be  called 
on  to  submit  to  the  same  tests  as  to  his  credibility  as  may  be 
legrally  apjilied  to  other  witnesses.  The  cross-examination  is 
limited  only  by  the  sound  discretion  of  the  court. 

ITanoff  V.  Ptate,  37  0.  S.  17S. 

Golner  v.  State,   19   C.  C.    (N.S.)    571,  26  C.  D.  fio4. 

(b)  The  accused  havin<;  given  evidence  in  his  own  behalf, 
may  be  questioned  on  cross-examination  as  to  a  different  story 
told  by  him  to  the  police  officers  after  his  arrest,  for  the  pur- 
pose of  discrediting  his  testimony. 

Eiolo  V.  Stato,   10  C.  C.    (N.S.)   248. 

(c)  In  a  prosecution  for  manslaughter  by  shooting,  where 
the  defense  was  that  the  shooting  Avas  accidental,  and  the  ac- 
cused testified,  he  may  be  cross-examined  as  to  his  ownership 
and  use  of  firearms  and  of  incidents  connected  therewith,  as  it 
tends  to  show  familiarity  with  firearms. 

Woller  V.  stato,   10  C.  D.  381,  10  C.   C.   16fi. 

(d)  And  where  an  aceomjilice  testifies  as  a  AVitness,  a  lib- 
eral and  full  cross-examination,  for  the  purpose  of  testing  the 
truth  of  his  statements,  should  be  permitted;  and  it  is  error 
to  restrict  such  cross-examination  within  unreasonable  limits. 

Lop  v.  Stato,  21   0.  S.  151. 

301.  CROSS-EXAMINATION     ERROR. 

(a)  Reviewing  courts  Avill  not  reverse  a  judgment  of  a 
trial-court  because  of  a  limitation  of  cross-examination  of  a 
witness,  unless  it  clearly  appears  that  there  has  been  an  abuse 
of  discretion  therein  resulting  in  manifest  prejudice  to  the 
complaining  party. 

Fabian  v.   State,  07  0.  S.   184. 

(b)  "Where,  during  the  cross-examination  of  a  witness,  the 
adverse  counsel  interrupts  by  asking  questions  which  the 
court  allows  to  be  answered,  it  is  not  error,  as  it  is  wilhiii  the 


§302  METZLER'S    OHIO   TRIAL    EVIDENCE  378 

discretion  of  the  trial-court  to  alloAv  such  interruptions,  al- 
though the  action  of  the  adverse  counsel  is  somewhat  irregu- 
lar. And  it  is  not  reversible  error  for  counsel  to  make  a 
remark,  such  as  "avc  don't  claim  that,"  during  the  cross- 
examination  of  his  witness. 

Scliaal  V.  TTeck,  8  C.  D.  .190,  17  C.  C.  3S. 


(c)  Where  a  witness  on  his  examination  in  chief  testifies 
to  important  facts  in  favor  of  the  party  calling  him,  prejudice 
to  the  adverse  party  should  be  presumed  to  arise  from  the 
denial  of  the  right  to  a  fair  and  proper  cross-examination. 
The  denial  of  such  right  is  error,  for  which  a  judgment  may 
be  reversed  by  a  reviewing  court,  though  the  cross-examiner 
does  not  disclose  the  answers  which  he  expects  to  elicit  by 
such  cross-examination.  The  rule  requiring  such  disclosures  is 
not,  ordinarily,  applicable  to  what  is  strictly  cross-examination. 

IMartin   v.   Elden,   32   O.    S.   2S2,   80. 

Morgan   v.   State,  48  O.  S.  371,  4. 

Railway  v.  Boltz,  16  C.  C.   (K.S.)   383,  6. 

302.  LIMITS  OF  CROSS-EXAMINATION. 

(a)  The  right  of  cross-examination  is  not  to  be  limited  by 
the  particular  facts  disclosed  in  the  examination  in  chief,  but 
may  he-  extended  to  whatever  the  party  calling  the  witness  is 
required  to  prove.  Thus  a  witness  of  the  plaintiff  may  be 
cross-examined  by  the  defendant  touching  all  matters  which 
it  is  competent  for  the  plaintiff  to  prove  under  the  issue  in 
order  to  entitle  him  to  recover.  And,  on  the  other  hand,  the 
plaintiff  may  cross-examine  the  defendant's  witnesses  as  to  all 
matters  which  the  defendant  may  prove  under  the  issue  in 
order  to  sustain  his  defense.  But  when  the  cross-examination 
is  extended  to  topics  disconnected  with  the  particular  facts 
disclosed  in  the  direct  examination,  leading  questions  to  the 
witness  may  be  proper  or  improper  according  to  circum- 
stances, and  the  control  of  this  must  rest  within  the  discretion 
of  the  court. 

Legg  V.  Drake.   1   O.   S.   286,  292. 

(b)  The  fact  that  the  party  calling  a  witness  did  not  ex- 
amine him  as  to  a  usage  or  custom  which  is  material  to  the 


379  EXAMINATION    OF    WITNESSES  §302 

case  on  trial,  does  not  preclnde  the  otlier  party  from   cross- 
examining  him  as  to  the  existence  of  such  usage  or  custom. 
Dock  Co.  V.  Trapnell,  23  C.  C.   (N.S.)   40S. 

(c)  The  extent  to  which  cross-examination  may  be  con- 
ducted is  usually  a  matter  of  discretion  on  the  part  of  the 
trial-court.  Where  tiie  questions  i-ejccted  are  mainly  rcju'ti- 
tions  of  questions  which  had  been  put  in  another  form  and 
answered,  Ihere  is  no  abuse  of  discretion.  And  a  ]')arty  can 
not  object  to  the  range  taken  in  cross-examining  a  witness  on 
an  immaterial  matter,  -when  the  witness  was  first  offered  and 
examined  on  the  same  matter  by  the  objecting  party. 

Carey  v.  State.  70  O.  S.  121,  12G. 

Minz'ey   V.   :\lai(y    Co.,   6   C.  C.    (X.S.)    o\r^.    l.i    C.    1).  f)!):?. 

(d)  A  witness  may  be  cross-examined  as  to  all  matters 
pertinent  to  the  issue  on  trial,  even  though  he  is  interested  to 
testify  against  the  party  calling  him;  except  that  a  party  can 
not,  before  the  time  of  opening  his  own  case,  introduce  his 
distinct  grounds  of  defense  or  avoidance  by  the  cross-examina- 
tion of  the  witnesses  of  his  adversary.  A  defendant  has  no 
right  to  go  into  the  distinct  matter  of  his  defense  before  the 
plaintiff  has  rested.  And  to  allow  a  party  defendant  to  do  so 
in  the  cross-examination  of  the  plaintiff" 's  witnesses  would  be 
giving  him  an  undue  advantage. 

Lofr,!?   V.   Drako.    1    0.   R.  2Sfi,   292. 

BoniK-tt  V.   State.    10   C.   C.  84.  4   C.   1).    12!). 

Circleville  v.  Solin,  20  C.  C.  3GS,  11   C.  1).  V.)?,. 

(e)  Since  it  is  incumbent  u])()ii  the  defendant  to  .show 
contributory  negligence,  it  is  error  to  i)ermit  counsel  for  the 
defendant  to  cross-examine  i)laintiff"s  witness  in  such  a  manner 
as  to  tend  to  establish  such  negligence;  but  in  a  case  where 
the  court  arrested  the  case  from  the  jury,  the  error  was  with- 
out prejudice. 

Scott  V.  Wingenberg,  26  C.  C.    (N.S.)    1.  20  C.  D.  479. 

(f)  In  an  action  on  an  insurance  policy,  the  defendant 
company  can  not  introduce  its  defense  on  the  cross-exam iiui- 
tion  of  plaintiff's  witnesses;  and.  of  course,  it  can  not  intro- 
duce  a   defense  which    mi^ilit    have   been    set    n|>    in    llie   answer 


§303  METZLER-S    OHIO   TRIAL    EVIDENCE  380 

but  was  not — a  defense,   in  this  case,   that   the  building  was 
burned  by  plaintiff  to  obtain  money  on  the  policy  of  insurance, 
riiillips   V.   Insurance   Co..   13   C.   C.   670,   6   C.  J).  203. 

(g)  IToAvever,  a  jilaintiff  may  be  allowed,  in  the  discretion 
of  tlie  court,  to  introduce  evidence  in  chief  on  cross-examina- 
tion of  the  defendant's  witnesses.  And  where  that  discretion 
is  not  abused  to  Ihe  substantial  pi'ejudice  of  the  objecting 
party,  its  exercise  affords  no  ground  for  error. 
Bean'v.   Green,   33   O.    S.   444.   50. 

(h)  When  the  court  permits  evidence  in  chief  to  be  given 
on  the  part  of  the  state,  on  cross-examination  of  the  witnesses 
of  the  defendant,  the  judgment  will  not  be  reversed  on  that 
ground  unless  it  ajipears  that  there  was  such  an  abuse  of 
discretion  as  to  have  deprived  the  defendant  of  a  fair  trial. 

Adams  V.  Ptate,  2.)  O.  S.  5S4,  6. 

303.  BIAS  AND  PREJUDICE. 

(a)  A  witness  may  be  interrogated  on  cross-examination 
concerning  facts  which  affect  his  credibility  by  showing  bias 
in  favor  of  the  party  who  called  him  as  a  witness,  or  by  show- 
ing prejudice  against  the  adverse  party. 

Hayes  v.   Sniitli,   02  O.   S.   101. 

Pvailway  v.  Ward,  2  C.  C.    (X.S.)    2.-)0.  ].")  ('.  D.  3!)n. 

(b)  If  a  witness  is  cross-examined  as  to  bias  or  prejudice 
in  respect  to  the  parties,  and  he  denies  the  facts  inquired 
about,  the  cross-examining  party  may  prove  them  by  other 
witnesses.  Every  man  who  comes  into  the  witness-box  must 
come  prepared  to  show  that  he  gives  his  evidence  from  pure 
motives ;  and  any  fact  that  shows  the  contrary  is  admissible 
against  him  for  the  purpose  of  affecting  his  credit  as  a  wit- 
ness and  for  that  purpose  alone. 

Hayes   v.   Smith.   62  0.  S.   161. 
Kent    V.   State,   42    O.    S.    420. 
Cf.  State  V.  Nevin,  23   Bull.  411. 
See  Section  13659,  General  Code. 

(c)  After  a  witness  for  the  state  has  admitted  his  com- 
plicity with  the  defendant,  it  is  error  for  the  court  to  refuse 


381  EXAMINATION    OF    WITNESSES  §  304 

to  permit  the  witness  to  be  asked  on  (.Toss-examiiiatioa 
whether  he  did  not  expect  that  his  own  discharge  from  further 
prosecution  depended  upon  the  conviction  of  the  defendant. 
A  liberal  and  full  cross-examination  should  be  permitted  for 
the  purpose  of  testing  the  truth  of  his  statements. 

Allen  V.  State,  10  0.  S.  287. 

Lee  V.  State,  21  O.  S.  151. 

(d)  A  person  jointly  indicted  with  accused  was  called  by 
the  state  and  gave  evidence  tending  to  i)rove  the  guilt  of  the 
defendant,  which  evidence  was  in  conflict  with  fonnci-  state- 
ments of  the  Avitness,  It  Avas  held  that  the  defendant  may- 
show,  by  cross-examination  of  such  witness,  that  he  iiad  been 
offered  money  and  propertj^  and  immnnity  from  punishment, 
if  he  Avould  testify  as  he  finally  testified  on  behalf  of  the 
state.  The  fact  that  the  offer  was  made  by  one  having  no 
authority  to  make  it  goes  to  the  weight  and  not  to  the  com- 
petency of  the  evidence. 

Tullis  V.   State,  30   ().   S.  200. 

(e)  The  per  diem  which  the  prosecution  has  agreed  to  pay 

its  witnesses  in  addition  to  th(*  fees  which  they  will  receive 

under  the  statutes,  is  a  proper  subject  of  cross-examination; 

and  a  party  has  been  allowed  to  ask  a  witness  who  was  in  the 

employ  of  the  adverse  party  how  much  he  was  paid  for  his 

work. 

Volk   V.  Wostorvillc,   .3  X.   V.    fX.S.)    241.    17   O.   D.  77(5. 
Railway  v.  Rons,  !)  C.  C.  201,  (i  C.  I).  :{.{,  (i. 
See  Berry  v.   State,  31  O.  S.  21!).  2:50. 


04.   DISPARAGING  QUESTIONS. 

(a)  The  limits  to  which  a  witness  may  be  cross-examined 
on  matters  not  relevant  to  the  issue  for  the  |)U!'|>oso  of  judg- 
ing of  his  character  and  credit  from  his  own  voliiulary  ;nl- 
missions,  rvst  in  the  sound  discretion  of  Ihe  coiifl  ;  ;ind  ex- 
(dtision  of  sn<'h  evidence  is  not  ground  t'oi-  fe\-ers;d.  Sn<'h 
(piestions  may  be  allowed  when  there  is  reason  to  believe  it 
will  tend  to  the  ends  of  justice;  but  they  ought  to  be  ex- 
cluded when  a  disparaging  course  of  examination  seems  unjust 


§304  METZLER'S    OHIO   TRIAL    EVIDENCE  382 

to  the  witness,  and  luiealled  for  by  the  circumstances  of  the 

case. 

Wroc  V.  State,   20  0.  S.   460. 
Hanofif  V.  State,  37  0.  S.   178. 
Bank  v.  Slenimons,  34   ().   S.   142. 
Shelby  v.   Clagett,  46   ().   S.  549. 

(b)  A  witness  may  be  asked  on  cross-examination  if  he 
had  not  been  once  arrested  for  an  assault  with  intent  to  kill, 
or  if  he  had  not  plead  guilty  to  assault  and  battery,  or  how 
many  times  he  had  been  under  arrest,  or  if  he  had  been  con- 
fined in  the  penitentiary. 

Hanoff  V.   State,   37   0.  S.   178,  9. 

Wroe  V.  State,  20  0.   S.  460. 

Coble   V.   State,    31    O.    S.    100,    1. 

Cf.  Smith  V.  Johnson,  16  O.  D.  43,  3  N.  P.   (N.S.)   8,  10. 

Burns  V.  State,  75  O.  S.  407,  11. 

(c)  On  the  trial  of  a  criminal  case,  the  state  may  cross- 
examine  a  witness  for  the  defendant  by  asking  him  if  indict- 
ments are  pending  against  him,  but  may  not  ask  him  if  he 
Avas  indicted  jointly  with  the  defendant.  Until  the  defendant 
offers  evidence  of  his  general  character,  the  prosecution  is  not 
permitted  to  offer  testimony  on  that  subject.  (For  similar 
cases,  see  Character  in  Index.) 

Hamilton  v.  State,  34  0.  S.  82,  86. 

(d)  The  court  has  discretion  to  refuse  a  disparaging  ques- 
tion of  a  bank  director  who  is  sued  on  a  loan  from  the  bank, 
as  to  whether  he  did  not  owe  the  bank  more  than  the  law  and 
his  oath  allowed.  And  the  rejection  of  the  question  is  not 
ground  for  reversal. 

Bank  v.  Sleramons,  34  0.  S.  142. 

(e)  Where  the  plaintiff,  a  woman,  is  suing  a  municipal 
corporation  for  personal  injuries,  the  trial-court  may  sustain 
an  objection  to  a  question  on  cross-examination  as  to  whether 
she  had  ever  given  birth  to  a  bastard.  And  a  question  by  the 
prosecutor  to  the  accused  while  testifying,  asking  whether  his 
wife  had  not  kept  an  assignation  house,  is  improper.  The  ex- 
tent of  such  cross-examinations  rests  in  the  sound  discretion 
of  the  court. 

Shelby  v.  Clagett,  46  0.  S.  549. 
Thurman  v.  State,  4  C.  C.   141,  2  C.  D.  466. 


383  EXAMINATION    OF    WITNESSES  §  305 

(f)  AVhere  there  are  other  causes  of  action  with  one  for 
breach  of  promise,  and  the  latter  was  not  accompanied  by 
seduction,  a  cross-examination  of  plaintiff  as  to  her  conduct 
and  chastity  after  the  breach  may  be  competent  as  reflecting 
on  her  credibility. 

Reynolds  v.  Walker,   3G   Bull.   167. 

305.  COLLATERAL  EVIDENCE  BINDING. 

(a)  A  witness  can  not  be  cross-examined  as  to  any  fact 

which  is  collateral  and  not  material  to  the  issue,  merely  for 

the  purpose  of  contradicting  him.    Where  a  witness  has  been 

cross-examined  as  to  matters  which  are  merely  collateral  and 

immaterial  to  the  issue,  and  such  as  have  no  tendenc}^  to  show 

bias  or  interest  in  favor  of  or  against  a  party,  his  answer  is, 

in  general,  conclusive  upon  the  party  making  the  inquiry,  ajid 

he  can  not  be  contradicted. 

Clinton  v.  State,  33  0.  S.  27. 

Kent  V.   State,  42  0.   S.  426. 

Williams    v.    State,    Wrifrht    42. 

Cohle  V.  State,  31   0.  S.   100,   102. 

Railways  v.  Prus,  7  O.  App.  412,  28  0.  C.  A.  .3(5!),  20  O.  1).  (m. 

(b)  Collateral  facts  not  competent  on  direct  examination 
may  be  inquired  into  on  cross-examination  in  order  to  ascer- 
tain the  ground  of  the  witness's  judgment  and  to  test  the  cor- 
rectness of  his  testimony.  If  such  evidence  should  be  called 
out  on  cross-examination,  the  party  calling  for  it  would  be 
bound  by  the  answers  given,  and  no  collateral  issues  could 
arise  on  its  admission. 

Insurance    Co.    v.    Tohiii,    32    O.    S.    77.    W. 
Brown  v.   Il.iiikin.  2  C.  L.  R.  2S.  4  ().  IX  R.  MVl. 

(c)  A  witness  may   be  cross-exaiuincd   as  to  liis  religious 

belief  and  as  to  his  recent   declarations  in    relation   tliereto ; 

but  the  subject  is  collateral  aiul   is  not  material  to  the  issue, 

and  the  answers  elicited  from  the  witness  will  not  serve  as  a 

foundation  to  call  witnesses  to  contradii't  liiin. 

Clinton  V.  State.   33   O.   S.  27. 
Brock    V.    MillifiUM,    10   (»li.    121,    t!. 


§306  METZLER'S    OHIO    TRIAL    EVIDENCE  384 

3C6.  ANSWER  AS  TO  CONVICTION. 

(a)  If  a  witness  denies  his  conviction  of  an  infamous 
crime,  such  as,  under  the  old  hiw,  rendered  a  convict  incom- 
petent as  a  witness,  the  conviction  may  be  shown  for  the  pur- 
pose of  affecting  his  credibility  as  a  witness.  But  evidence 
can  not  be  given  to  jirove  an  infamous  crime  against  a  w^it- 
ness,  of  which  he  has  not  been  convicted. 

Coble  V.   State,   31    0.   P.    100. 

.August  V,  FiniK'ity,    10  C.   C.    (IN.S.)    433,  20   C.  D,  330. 

Section    ]36o!).    General    Code. 

Webb    V.    State,    29    0.    S.    351. 

(b)  At  common  law,  conviction  of  an  infamous  crime,  such 
as  forgery,  perjury,  subornation  of  perjury,  and  offenses  af- 
fecting the  administration  of  justice,  rendered  the  person  in- 
famous and  wholly  unworthy  of  credit.  Now,  by  statute,  the 
competency  of  the  person  as  a  witness  is  restored,  but  his  con- 
viction may  still  be  shown  to  affect  his  credibility.  The  effect 
of  such  conviction  is  to  impeach  the  character  of  the  witness 
as  a  man  of  truth. 

Webb  V.   state.   20   0.   S.   351,   S. 
Coble  V.  State,  31  0.  S.   100,  102. 

(c)  Where  the  character  of  the  witness  is  attaclied  by 
shoAving  his  indictment  and  conviction  upon  a  charge  of  fel- 
ony wholly  disconnected  from  the  issue  on  trial,  the  trial 
court  is  not  bound  to  permit  counsel  to  go  into  details  Avith 
reference  to  the  crime  so  charged  or  specifically  into  the  his- 
tory of  the  witness's  past  life  where  the  same  is  wholly  imma- 
terial and  collateral, 

Diegle  V.  State,   14  C.  C.    (KS.)    289,  23   C.  D.  82. 

(d)  Where  for  the  purpose  of  discrediting  a  witness,  a 

record  is  offered  of  conviction  of  an  offense  which  is  not  made 

a  crime  nr  misdemeanor  under  anv  statute  of  the  state,  and 

was  in  violation  of  a  city  ordinance  only,  it  is  not  error  to 

sustain  an  objection  to  its  admission  in  evidence. 

August  V.  Finnerty,  10  C.  C.   (N.S.)   433,  20  C.  D.  330. 
Coble   V.    State,    31    0.    S.    100. 

(e)  Where  the  question  as  to  whether  the  witness  is 
guilty  of  infamous  crimes  becomes  the  legitimate  subject  of 


385  EXAMINATION    OF    WITNESSES  §307 

inquiry  on  the  trial,  liis  reputation  for  trutli  may  ho  proved 
to  rebut  the  imputation  of  guilt  which  the  evidence  makes 
against  him. 

Webb.  V.  State,  29  0.  S.  351. 

(f)  Where  a  ^vitness  on  cross-examination  admits  his  con- 
viction and  confinement  in  a  penitentiary  for  a  crime  involv- 
ing moral  tui"])itude.  it  is  comi)etent  for  the  ]^arty  who  called 
him  to  establisli  his  good  character  for  trutli  by  adducing  evi- 
dence of  his  general  reputatioii  in  that  respect. 

Wick  V.  BaUlwiii,  51  ().  S.  51. 

307.  PRIVILEGE  AGAINST  INCRIMINATION. 

(a)  A  witness  is  not  bound  to  answer  any  question  that 

■will  directly  or  indirectly  incriminate  himself.     This  privilege 

comes  from  the  constitutional  provision  that  no  person  shall 

be   compelled,  in   any   criminal   case,   to  be  a  witness  against 

himself. 

Warner  v.  Lucas,  10  Oh.  336. 

McGorray    v.    Sutter,    80    0.    S.    400,   411. 

(b)  But  it  would  be  a  departure  from  the  principle  to 
hold  that  the  witness  may  use  the  immunity  to  prevent  the 
discovery  of  the  truth  or  to  shield  himself  from  mere  embar- 
rassment or  humiliation.  Therefore  the  witness  may  be  re- 
quired to  answer,  if  by  an,/  inquiry  which  does  not  invade  his 
immunity  it  is  made  to  appear  to  the  trial-judge  that  his 
answer  would  not  have  a  tendency  to  incriminate  him. 

McGorray  v.  Sutter,  80  0.  f!.  400,  411. 

Cf.   In   re  Lowe,  IG  0.  D.  2.i4,  3  N.  P.   (N.S.)    041. 

(c)  When  a  witness  refuses  to  answer  a  question  on  the 
ground  that  his  answer  will  tend  to  incriminate  him,  his  claim 
of  privilege  is  properly  allowed  by  the  court  if  from  the  cir- 
cumstances of  the  case  and  the  nature  of  the  question  it  ap- 
pears there  is  reasonable  ground  to  api)rehend  tnat  bis  an- 
swer would  have  that  effect. 

State  V.  Murray,   82   0.   S.  305. 

In    ro   Lowe,   3   N.   P.    (N.S.)    041,    ]«   O.    1).   2.-.4. 

(d)  The  privilege  of  a  witness  to  refuse  to  answer  a  ques- 
tion on  the  ground  that  it  will  tend  to  incriminate  him.  can 


§  308  METZLER'S    OHIO   TRIAL    EVIDENCE  386 

not  be  interposed  solely  by  counsel,  especially  where  the  wit- 
ness swears  that  to  answer  will  not  tend  to  incriminate  him. 
Ammon  v.  Johnson,  2  C.  D.  149,  3  C.  C.  263. 

(e)  Wliile  the  law  does  not  permit  the  questioninp:  of  a 
legal  voter  as  to  how  he  voted,  and  an  illegal  voter  might  de- 
cline to  answer,  yet  where  he  does  not  claim  his  privilege,  but 
voluntarily  discloses  that  he  did  vote,  he  may  be  compelled  in 
an  election  contest  to  tell  for  whom  he  voted. 

State,  ex  rel.,  v.  Markley,  9   C.  C.    (N.S.)    561,  20  C.  D.   113. 

(f)  It  has  been  held  in  a  case  involving  fraud  that  when 
a  party  testifies  in  his  own  behalf,  although  the  testimony  is 
in  the  form  of  an  affidavit,  the  adverse  party  has  a  right  to 
examine  him  as  to  anything  relative  to  the  charge,  even 
though  it  might  tend  to  incriminate  him. 

Este  V.  Wilshire,   44   0.   S.   636. 

(g)  A  witness  may  not  refuse  to  answer  a  question  perti- 
nent to  the  issue  on  the  ground  that  the  answer  will  tend  to 
disgrace  him,  when  it  will  not  tend  to  incriminate  and  the 
witness  so  testifies. 

.\t7imon  V.  Johnson,  2  C.  D.  149,  3  C.  C.  263. 

308.  REFUSING  TO  ANSWER. 

(a)  A  witness  whose  deposition  is  being  taken  before  an 

officer  may  refuse  to  testify  to  facts  not  relevant  to  the  issues, 

if  the  disclosure  of  such  irrelevant  facts  would  be  injurious  to 

the  business  of  the  witness;  and,  if  imprisoned  by  the  officer 

for  such  refusal,  he  may  be  discharged. 

Ex  parte  Jennings,  60  0.  S.  319. 

Ex  parte  Turner.  11   0.  D.  2.51,   8   N.  P.  241. 

(b)  In  an  action  to  enjoin  an  illegal  combination  and  for 
damages,  the  plaintiff,  when  called  for  examination  before  a 
notary,  is  not  at  liberty  to  refuse  to  answer  questions  on  the 
ground  that  it  calls  for  a  trade  secret  and  is  therefore  priv- 
ileged. But  M'here  such  questions  are  irrelevant,  the  refusal 
of  the  witness  to  answer  them  must  be  sustained. 

Jones  V.  Goocle,  7  G.  C.   (N.S.)   589,  18  C.  D.  475. 


387  EXAMINATION    OF    WITNESSES  §  309 

(c)  While  an  officer  before  -whom  a  deposition  is  being 
taken,  may  punish  as  for  contempt  any  person  who  refuses  to 
obey  an  order  to  answer  a  question  or  to  produce  a  document, 
he  can  not  do  so  unless  it  is  lawfully  ordered ;  and  where  such 
question  or  document  is  not  pertinent  to  tiie  issues,  or  is  not 
material  or  necessary  to  make  out  the  case  of  the  party  eallino; 
for  it,  or  is  incompetent  or  privileged,  the  witness  can  not  law- 
fully be  ordered  to  answer  such  question  or  to  produce  such 
document.  And  the  witness  may  make  objection  to  an  incom- 
petent question ;  it  need  not  come  from  a  party. 

Ex   parte   Schoepf,   74   O.   S.    1,    12. 

(d)  But  where  the  question  propounded  involves  no  ques- 
tion of  privilege  on  the  ])art  of  the  witness,  it  is  his  duty  to 
answer.  And  Avhere  tlie  Avitness  testifies  to  matters  pertinent 
to  the  issues,  he  is  not  liable  to  an  action  by  the  party  against 
whom  he  has  testified. 

DeCamp   v.    Arcliibald,   50   O.  S.  618. 

Bickerstaff  v.  Hingsley,  1  O.  A  pp.  91,  19  C.  C.   (N.S.)   384. 

Liles  V.  Gaster,  42  0.  S.  6:51. 

(e)  Where  an  interested  party  avails  himself  of  his  right 
to  testify  in  his  own  behalf,  justice  to  the  adverse  party  re- 
quires a  full  and  thorough  cross-examination.  And  where,  by 
his  misconduct  in  eontemi)t  of  court  and  in  violation  of  the 
rights  of  his  adversary,  he  refuses  to  answer,  he  should  for- 
feit his  right  to  have  his  testimony  considered  or  his  case 
heard  until  he  submits  to  testify.  But  where  a  witness  does 
not  refuse  to  answer  any  questions,  he  can  not  be  sent  to  jail 

for  contempt  on  mere  suspicion  of  untruthful  statements. 
Foreman  v.   Railroad,  4   W.  L.  M.   159,  2  ().  I).   K.  611. 
Protective  Assn.  v.  Roebling,  18  N.  P.  (N.S.)   385,  26  O.  1).  21!i. 

309.  RE-EXAMINATION. 

(a)  A  Avitness  who  has  been  fully  examined  in  chief  and 
cross-examined,  may  be  re-examined  to  explain  the  sense  and 
meaning  of  any  expression  userl  in  cross-examination  .-  l)nt  lie 
can  not  be  examined  concerning  new  matter  not  refcM-ivnl  to  in 
the  cross-examination,  as  to  Avhich  he  miglit  have  Ix'cn  exam- 
ined in  chief.  Any  relaxation  of  the  rule  is  bnt  ;in  exercise  of 
discretion  and  not  reviewable.     And  tlic  mere   i-cpelition   on 


§  309  METZLER'S    OHIO   TRIAL    EVIDENCE  388 

re-examination  of  questions  asked  and  answers  given  on  cross- 
examination  can  not  be  prejudicial. 

Holtz  V.  Dick,  42  0.  S.  23. 

See  Section   11447    (sub.  4),   General   Code. 

Thompson  v.   Ackernian,   12   C.  D.  456,  21  C.  C.  740. 

(b)  Where  defendant  on  cross-examination  of  plaintiff's 
witness  shows  the  general  nature  of  the  business  in  which  he 
is  engaged,  it  is  competent  for  plaintiff  on  re-examination  to 
inquire  into  the  particulars  of  his  business  so  far  as  it  reflects 
upon  the  issues. 

Bean  v.  Green,  33  0.  S.  444. 

(c)  In  a  collision  case  between  steamboats,  plaintiff  intro- 
duced a  witness  to  show  that  defendant's  pilot  was  not  skill- 
ful. Defendant  then  asked  on  cross-examination  if  the  witness 
ever  knew  of  any  accident  to  happen  while  this  pilot  was  at 
the  wheel,  to  which  he  answered  in  the  negative.  This  fairly 
opens  the  door  for  the  plaintiff  to  ask  the  redirect  question  if 
the  pilot  ever  steered  alone,  and  if  so,  whether  he  got  into  any 
danger. 

Clipper    V.   Logan,    18    Oh.    375. 

(d)  Where  a  witness  proves  an  unwilling  witness  for 
plaintiff  and  makes  a  statement  about  a  transaction  on  cross- 
examination  which  is  different  from  the  statement  made  in 
chief,  it  is  competent  for  plaintiff  on  re-examination  of  the 
witness  to  prove  by  him  that  he  had  made  contradictory  state- 
ments before  the  trial  and  that  his  testimony  on  cross-examina- 
tion is  not  true ;  and  a  paper  signed  by  the  witness  tending  to 
prove  the  latter  is  admissible. 

Mustill  V.  Thornton,  22  C.  C.  608,  12  C.  D.  504. 

(e)  But  where  a  witness  on  cross-examination  admits  that 
he  lias  taken  an  active  interest  in  the  case  in  favor  of  the 
party  calling  him,  he  can  not  be  permitted  on  re-examination 
in  explanation  of  his  conduct,  to  give  his  opinion  of  the  merits 
of  the  case  by  stating  that  his  reason  for  taking  such  interest 
in  the  case  was  that  he  considered  the  plaintiff  "a  very  much 
injured  and  very  badly  abused  girl." 

Turnpike   Co.  v.  Coover,  26   0.   S.  520,  522. 


389  EXAMINATION    OF   WITNESSES  §  31C 

310.  RECALLING  WITNESSES. 

(a)  To  permit  a  witness  to  be  recalled  and  agrain  testify 
is  discretionary  with  the  trial-court,  and  its  action  will  not  be 
disturbed  unless  such  discretion  is  abused.  It  is  common  prac- 
tice for  counsel,'  and  permitted  by  the  courts,  to  recall  wit- 
nesses at  almost  any  stagre  of  the  case,  for  the  purpose  of 
cross-examination,  particularly  where  it  is  desired  to  contra- 
dict a  statement  of  the  witness  by  the  evidence  of  others. 

Eailway  v.  Thompson,  21  C.  C.  778,  12  C.  D.  .326. 

Brandon   v.  Railway,   17  C.  C.  705,  8   C.  D.  042. 


CHAPTER  XXII. 

IMPEACHMENT. 

311.  Reputation  for  truth — Rule. 

312.  Reputation — Facts  provable. 

313.  Reputation  at  time  of  trial. 

314.  Who  may  be  impeached. 

315.  Contradictory  statements — Rule. 

316.  Contradiction  in  opinions. 

ST 7.  Contradiction  in  former  testimony. 
318.  Contradictory  written  statements. 
Si 9.  Failure  to  siiealv. 
S20.  Order  of   evidence. 
321.  Rehabilitation. 

311.  REPUTATION   FOR  TRUTH— RULE. 

(a)  The  character  or  reputation  of  a  witness  for  truth  and 

veracity  may  be  impeached  by  the  adverse  party ;  and  where  a 

witness  is  called  for  that  purpose,  such  impeaching  witness 

can  only  speak  of  the  general  reputation  of  the  witness  in  the 

community,  and  can  not  give  his  own  opinion  of  his  character. 

Buclclin  V.  State,  20  Oh.  18. 
Mallory   v.   Smith,   Tappan    108. 

(b)  It  is  not  error  to  exclude  the  testimony  of  a  witness 

called  to  discredit  another  for  truth  when  it  shows  that  he  is 

testifying    from   his   personal    knowledge,    and   not    from    the 

general  reputation  of  the  person  whose  testimony  is  sought  to 

be  discredited,  as  when  the  impeaching  witness  answers  that 

the  reputation  of  the  witness  is  bad  with  him. 

Cowan  V.  Kinney,   33   0.   S.   422. 

See  State  v.  Griffith,  18  N.  P.   (N.S.)   161. 

(c)  In  impeaching  the  credit  of  a  witness,  the  inquiry  into 
his  general  reputation  or  character  should  be  restricted  to  his 
reputation  for  truth  and  veracity,  and   can  not  be  made   in 

.100 


391  irvlPEACHMENT  §312 

general  terms,  involving  his  entire  moral  character  and  estima- 
tion in  society. 

Craig  V.  State,  5  0.  S.  605. 

Perkins    v.   Mobley,    4   0.    S.   668. 

Cf.  Smith  V.  Johnson,  3  K  P.  (N.S.)   S,  10  O.  D.  43.  5. 

(d)  As  to  the  charge  of  general  bad  reputation,  if  untrue, 
every  person  in  the  neighborhood  can  give  specific  evidence 
rebutting  it.  If  not  able  to  state  affirmatively  that  the  person 
is  well  spoken  of  in  the  neiglil)orhood.  the  witness  can  state 
that  he  knows  of  no  such  general  bad  reputation  ;  which  goes 
directly  to  rebut  the  allegation  of  its  existence. 

Bucklin  v.  State,  20  Ob.  IS,  24. 

312.  REPUTATION^FACTS  PROVABLE. 

(a)  Any  form  of  words  may  be  adopted  by  which  to  as- 
certain whether  the  im]ieaciiing  witness  has  sufficient  knowl- 
edge of  the  ]iublic  estimation  for  truth  in  which  tlic  witnes.? 
proposed  to  be  impeached,  is  held.  In  general  the  proper 
form  of  the  question  is :  Have  you  the  means  of  knowing  th« 
general  reputation  of  A  P>,  the  witness,  for  truth?  Oi-,  this 
preliminary  question  may  be:  Are  you  acquainted  with  A  B, 
and  do  you  know  what  is  his  general  reputation  for  truth? 

Craig  V.  State,  5  0.   S.   CO."),  GOT. 

(b)  It  is  not  error  to  ask,  Are  you  acquainted  with  A's 
reputation  for  truth  and  voracity;  if  so,  wliat  is  it?  By  tho 
word  "reputation"'  so  used,  Avill  be  intended  tlie  general  re- 
pute of  the  witness  sought  to  be  impeached. 

French  v.  Millarrl,   2   0.   S.   44. 

(c)  Where  a  witness  acquainted  with  the  reputation  of 
another  for  truth  and  veracity,  testifies  that  such  reputation  is 
bad,  he  may  be  allowed  to  further  testify  that  from  such 
reputation  he  Avoukl  not  believe  the  witness  sought  t<.  I)c  im- 
peached under  oath.  The  object  of  such  testimony  is  to  en- 
able the  jury  to  ascertain  the  ti-uc  cliariictcr  of  sndi  reputa- 
tion as  the  impeaching  Avitness  understands  it.  and  thcirhy 
determine  the  extent  to  which  it  ought  lo  discredit  the  wit- 
ness. 

mUh  V.  Wvlio,  26  0.  S.  574. 


^  313  METZLER'S   OHIO   TRIAL    EVIDENCE  392 

(d)  For  the  purpose  of  impeaching  the  credibility  of  a 
competent  witness,  it  is  not  admissible  to  prove  by  other  wit- 
nesses that  such  witness  is  not  ])ossessed  of  ordinary  intelli- 
gence. Hence,  the  deposition  of  a  witness  can  not  be  attacked 
by  calling  other  witnesses  to  show  the  weakness  of  intellect 
of  such  witness. 

Bell   V.   Einner,    16  0.  S.   45. 

(e)  If  it  be  conceded  that  the  credibility  of  a  witness  is 
to  be  graded  in  proportion  to  his  strength  of  intellect,  the 
tribunal  before  which  he  testifies  can  better  estimate  his 
capacity  and  the  weight  to  which  his  testimony  is  entitled  by 
his  manner,  and  by  his  statements  on  cross-examination,  than 
can  ordinarily  be  done  by  the  testimony  and  conflicting  opin- 
ions of  other  witnesses  as  to  the  extent  of  his  mental  powers, 
or  the  degree  of  his  intelligence. 

Bell  V.  Einner,  16  0.  S.  45,  49. 

(f)  A  Avitness  called  to  impeach,  who  swears  that  another 
witness  is  not  of  as  good  character  for  truth  as  men  in  gen- 
eral, may  be  cross-examined  as  to  how  he  formed  such  opin- 
ion; he  may  be  asked  who  gave  the  witness  a  bad  character, 
and  particular  facts  may  be  inquired  about  for  the  purpose  of 
supporting  the  character  of  the  witness  sought  to  be  im- 
peached. 

Cloason  v.  Williams,  Tappan   174. 

313.  REPUTATION  AT  TIME  OF  TRIAL. 

(a)  Tn  a  prosecution  for  rape,  it  is  competent  to  impeach 
the  prosecutrix,  who  has  been  examined  as  a  witness  therein, 
by  proving  her  reputation  for  truth  to  be  bad  at  the  time  of 
the  examination;  and  it  is  error  in  the  court  to  limit  such  evi- 
dence to  her  character  as  it  existed  at  and  before  the  time  of 
the  commission  of  the  alleged  crime.  But  it  is  not  error  to 
apply  the  latter  limit  to  her  reputation  for  chastity. 

Pratt  V.  state,   19  O.   S.  277. 

(b)  But  wliere  a  convict  who  has  been  in  tlie  penitentiary 
two  years,  is  taken  therefrom  to  testify  as  a  witness  and  does 
so  testify,  it  is  competent  for  the  adverse  party  to  prove  that 


393  IMPEACHMENT  §315 

liis  reputation  for  truth  and  veracity  was  bad  at  the  time  of 
and  ])revious  to  his  conviction,  at  the  place  uhere  he  then  re- 
sided. There  is  certainly  no  presumption  tliat  a  man's  reputa- 
tion for  truth  would  improve  during  his  confinoment ;  on  the 
contrary,  the  former  state  of  things  is  presumed  to  continue. 
Hamilton    V.    State,    34    0.    S.    82,   85. 

314.  WHO  MAY  BE  IMPEACHED. 

(a)  A  witness  called  in  rebuttal  may  be  impeached.  "Where 
plaintiff  examines  a  witness  in  chief,  but  iu)t  as  to  anything 
disputed  by  defendant,  and  after  the  close  of  defendant's  evi- 
dence the  same  witness  is  called  in  rebuttal  and  contradicts 
the  testimony  of  the  defendant,  the  defendant  then  has  a  right 
to  prove  the  bad  reputation  of  the  witness  for  truth  and 
veracity. 

Marts  V.  State,  26  0.  S.  162. 

(b)  Where  an  affidavit  for  continuance  on  the  ground  of 
inability  to  procure  the  testimony  of  an  absent  witness  con- 
tains a  statement  of  what  is  expected  to  be  proved  by  the  wit- 
ness, and  such  statement  is  given  in  evidence  on  the  trial  as 
the  testimony  of  the  witness,  its  credibility  may  be  attacked 
in  the  same  manner  as  that  of  a  deposition,  by  impeaching  the 
veracity  of  the  witness. 

Insurance   Co.   v.    Wright,   33    0.   S.  533. 

(c)  "Where  the  evidence  taken  before  a  master  Avas  by 
mutual  consent  to  be  read  on  the  trial  without  any  right  re- 
served to  contradict  it,  it  was  said  that  neither  party  made  the 
testimony  read  bv  the  other  his  own,  so  as  to  estoj)  himself 
from  contradicting  or  imi)eaching  it. 

Rankin  v.  Ilannan,  3S  0,  S.  438,  440. 

315.  CONTRADICTORY  STATEMENTS     RULE. 

(a)  Declarations  made  l)y  a  witness  jjrcvious  to  his  oxain- 
ination  which  are  contrary  to  his  statements  when  examined, 
are  admissible  to  discredit  his  testimony,  hut  not  to  exclude 
him  as  a  witness.  But  before  a  witness  can  be  contradicted  by 
proving  statements  out  of  court  at  variance  with  his  testi- 


[§316  METZLER'S    OHIO   TRIAL    EVIDENCE  394 

mony,  he  must  be  first  inquired  of,  upon  cross-examination,  as 
to  such  statements,  and  the  time,  place  and  person  involved  in 
the  supposed  contradiction. 

Lamb  v.   Stewart,  2  Oh.  230. 

Dunn  V.    Cronise,  9  Oh.   82. 

King    V.    Wicks,    20    Oh.    87. 

(b)  It  is  not  enough  to  ask  him  the  general  question, 
whether  he  has  ever  said  so  and  so,  nor  Avhether  he  has  al- 
ways told  the  same  story ;  because  it  may  frequently  happeu 
that,  upon  the  general  question,  he  may  not  remember  whether 
he  has  so  said;  whereas,  when  his  attention  is  challenged  to 
particular  circumstances  and  occasions,  he  may  recollect  and 
explain  what  he  has  formerly  said. 

King   V.    Wicks,    20   Oh.    87,    00. 

ISIoniofville   v.  Weihl,  G   C.  D.   ISS,  ];5  C.  C.  680. 

(c)  The  testimony  of  a  Avitness  was  taken  by  deposition 
and  the  foundation  was  laid  for  his  impeacliment  by  contra- 
dictory statements.  The  impeaching  witness  at  the  trial  was 
not  confined  to  the  matters  brought  to  the  attention  of  the 
other  witness  in  his  deposition,  and  thus  many  statements 
claimed  to  have  been  made  were  put  in  evidence  wliich  the 
witness  had  no  opportunity  to  explain.    This  was  clearly  error. 

Railway   v.   Boltz,   10   C.   C     (N.S.),   393. 

(d)  Conduct  inconsistent  with  the  testimony  of  a  witness 
may  be  shown  as  well  as  former  statements  thus  inconsistent. 
Where  the  foundation  is  laid  for  contradicting  a  witness,  by 
conduct  or  statement  out  of  court  inconsistent  with  his  testi- 
mony upon  a  material  matter,  and  such  conduct  or  statement 
is  susceptible  of  different  meanings,  one  of  which  would  be 
inconsistent  with  the  truth  of  such  testimony,  it  is  admissible 
in  evidence,  leaving  the  jury  to  determine  which  is  the  true 
meaning;  and  to  exclude  such  evidence  is  error. 

Dilcher  v.  State,  39  0.  S.  130,  136. 

Traction  Co.  v.  Hatfield,  1  0.  App.  354,  17  C.  C.  (N.S.)  350,  24 
C.   D.   378. 

316.  CONTRADICTION  IN  OPINIONS. 

(a)  A  party  offered  to  prove  statements  of  a  witness 
which   M-ere   inconsistent   with   his   testimony,   and   they  were 


395  IMPEACHMENT  §317 

objected  to  on  the  ground  that  they  -were  mere  expressions  of 
opinion,  and  the  trial  court  excluded  them.  Tlie  reviewing 
court  held  that  as  the  former  statements  carried  with  tliem  an 
affirmance  of  facts  material  to  the  issue  and  inconsistent  with 
his  testimony,  they  were  admissible. 

Heintz  v.   Caldwell,  0   C.  D.  412.   16  C.  C.  630. 

(b)  Where  the  attending  physician  is  asked  as  to  the  prob- 
ability of  the  Avounds  on  deceased's  bod3-  having  been  self- 
inflicted,  and  he  answered,  "It  is  very  possible  they  could  be," 
it  was  held  proper  for  the  state  to  show  that  tlie  witness  had 
made  contradictory  statements  at  other  times,  when  both  opin- 
ions of  the  physician  were  based  upon  his  personal  knowledge 
gathered  from  frequent  examinations. 

Hoover  v.  State,  01  O.  S.  41,  45. 

S17.  CONTRADICTION  IN  FORMER  TESTIMONY. 

(a)  \yhen  the  ground  has  been  properly  laid  for  impeach- 
ing a  witness,  it  is  not  error  to  ])ermit  the  stenographer  who 
took  his  testimony  before  the  grand  .iury  to  state,  after  re- 
freshing his  memory  from  his  notes,  tliat  cei-tain  questions 
were  there  asked  the  Avitness  and  answers  given  by  him. 

.Tolm  V.  state,  16  C.  C.   (X.8.)    316. 

(b)  And  where  it  is  claimed  that  a  witness  who  testified 
at  a  former  trial  or  before  the  grand  jury  has  changed  his 
testimony,  the  official  stenographer  who  took  his  former  testi- 
mony may  read  his  notes  in  evidence  to  the  jury  as  impeach- 
ing such  witness,  if  he  remembers  and  can  testify  that  they 
were  correctly  taken,  and  tliat  the  notes  contain  all  the  evi- 
dence of  the  Avitness  on  the  subject,  although  at  the  time  he  is 
called  to  testify  he  has  no  independent  recollection  of  his 
testimony. 

Baum  V.  State,  6  C.  C.  '(N.S.)   SIT),  17  C.  D.  n6n. 
I'onn.  Co.  V.  Trainer,   12  C.  C.  60,  .5  C.  I),  f)!!). 

(c)  A  Witness  Avho  is  not  a  party  to  the  suit  may  not  be 
contradicted  by  statements  made  in  a  deposition  given  by  him 
in  another  suit  in  which  the  parties  were  not  the  same,  and  in 
reference  to  which  deposition  no  inquiry  was  made  of  the 
witness. 

Aklrich  V.  :Marcellu8,  3  C.  C.  .'300,  2  C.  D.  287. 


§318  METZLER'S   OHIO   TRIAL    EVIDENCE  396 

318.  CONTRADICTORY  WRITTEN  STATEMENTS. 

(a)  A  written  statement  which  the  witness  admits  he 
signed  and  which  is  in  conflict  with  his  oral  testimony  is  ad- 
missible, but  it  is  error  to  let  in  parts  of  it  as  to  which  he  was 
not  examined;  and  the  written  statement  may  be  admitted  in 
evidence  as  part  of  the  cross-examination. 

Insurance  Co.  v.   Carnalian,   10  C.   D.  225,   19   C.  C.  97. 
Spaulding  v.  Railway,  10  C.  D.  6G0,  20  C.  C.  99. 

(b)  A  written  statement  in  conflict  with  the  witness's  tes- 
timony, signed  in  his  name,  may  be  admitted  for  the  purpose 
of  impeachment,  even  though  he  denies  the  signature,  if  an- 
other witness  testifies  that  the  former  did  sign.  And  if  the 
witness  is  a  party,  for  the  additional  reason  that  it  is  a  decla- 
ration against  interest. 

iTisurance  Co.  v.  Carnalian,  10  C.  D.  225,  19  C.  C.  97 
Sullivan  v.  Starkcy,  14  C.  C.  (N.S.)  281,  22  C.  D.  4S5. 

(c)  A  witness  testified  in  behalf  of  the  state  that  goods 
were  received  and  bought  of  him  by  the  defendant  who  knew 
that  they  Avere  stolen;  and,  on  cross-examination,  he  denied 
that  he  liad  any  knowledge  whatever  of  a  letter  shown  to  him, 
and  purporting  to  have  been  Avritten  by  him  to  the  defendant, 
which  stated  that  he  knew  nothing  against  the  accused  relat- 
ing to  the  transaction.  It  was  held  that,  for  the  purpose  of 
impeaching  the  witness,  the  letter  might  be  given  in  evidence 
by  the  defendant,  on  making  prima  facie  proof  that  it  was 
written  at  the  dictation  of  the  witness,  and  w^as  in  fact  sent 
by  him  to  the  defendant. 

Shriedley  v.  State,  23  0.  S.  130. 

(d)  It  is  error  in  a  will  content  to  exclude  testimony  tend- 
ing to  show  that  a  witness  to  such  will  had  made  contradic- 
tory statements  at  different  times  touching  his  knowledge  that 
the  paper  writing  signed  by  him  as  such  Avitness  was  sub- 
scribed and  acknowledged  by  the  testator  as  his  will. 

Tims  v.Tinis,  14  C.  C.  (N.S.)  273,  22  C.  D.  50r,. 

(e)  But  where  a  subscribing  witness  had  died  before  the 
trial,  and  his  testimony  taken  at  the  probate  was  read  in  evi- 
dence, the  contestors  offered  in  evidence  his  declarations  re- 


397  IMPEACHMENT  §319 

speeting  the  capacity  of  the  alleged  testator.  It  -vvas  held  that 
before  such  statements  can  be  given  in  evidence  to  impeacli  a 
witness,  he  must  be  interrogated  as  to  the  same;  and  the 
fact  that  the  opportunity  for  such  examination  has  been  cut 
off  by  the  death  of  the  witness  does  not  form  an  exception  to 
the  general  rule.  The  want  of  such  examination  goes  to  the 
competency  of  the  evidence;  and  wliere  there  Avas  no  oppor- 
tunity for  the  witness  to  explain  the  supposed  declarations, 
nor  for  tlie  party  calling  him  to  examine  him  in  reference 
thereto,  this  mode  of  impeachment  can  not  be  resorted  to. 

Eunyan  v.  Price,  15  0.  S.  1. 

Baird  v.  Detrick,  8  0.  App.  108,  28  O    C.   A.  257. 

Cf.  Roush  V.  Wensel,  8  C.  D.  141,  15  C.  C.  133. 

319.  FAILURE  TO  SPEAK. 

(a)  "Whenever  on  a  former  occasion  it  was  the  duty  of  a 
witness  to  speak,  his  silence  or  his  failure  to  state  the  whole 
truth  concerning  a  material  matter  may  be  shown  for  the  pur- 
pose of  impeaching  his  testimonv  on  the  witness  stand.  And 
if  he  testifies  under  suspicious  circumstances  to  facts  which  he 
should  have  stated  before,  this  tends  strongly  to  impeach  his 
testimony.  But  such  witness  may  properly  be  asked  or  per- 
mitted to  explain  the  omission  to  state  the  facts  licfore. 

Spaiilding  v.  Railway,  10  C.  D.  000,  20  C.  C.  00. 
Hunt  V.  Caldwell,  22  C.  C.  283,  11  CD.  502. 

(b)  The  mere  fact  that  the  witness  on  the  stand  admits 
having  made  the  former  statement  wliidi  is  silent  as  to  cer- 
tain material  facts,  does  not  relieve  such  statement  of  its 
character  as  impeaching  evidence.  And  it  is  not  the  duty  of 
the  trial-judge  to  determine,  as  a  matter  of  fact,  wlu^tlier 
under  all  the  circumstances  such  statement  tends  to  impeach 
or  does  impeach  his  testimony  on  the  witness-stand.  Th;it 
question  may  properly  be  determined  by  the  jury. 

Spaul.ling   V.   Railway,    10   C.   D.   000,   20   C.   C.   00. 

(c)  Where  an  employe  who  has  been  injured  in  an  acci- 
dent fails  to  mention  one  of  the  aHe^n-d  causes  at  the  time 
his  statement  is  taken   following  the  accident.   (Iniil)t    is   cast 


§320 


METZLER'S    OHIO    TRIAL    EVIDENCE  398 


upon  his  testimony  as  to  sucli  alleged  cause,  when  made  long 
after  in  court  in  support  of  a  claim  for  damages. 

Railway  v.  Vogelson,  3  C.  C.   (N.S.)   581,  13  C.  D.  301. 

Cf.  Hunt  V.  Caldwell,  11  C.  D.  562,  22  C.  C.  283. 

(d)  A  witness  for  the  state,  having  testified  to  a  crimi- 
nating statement  by  the  accused,  can  be  asked  if  he  testified 
before  the  coroner,  and  if  he  had  not  failed  to  disclose  this 
statement  of  the  accused  when  examined  at  the  coroner's  in- 
quest; and  it  is  error  to  exclude  it. 

Turner  v.  State,  3  C.  D.  263,  5  C.  C.  537. 

Cf.  Riolo  V.  State,  19  C.  C.    (N.S.)    248. 

320.  ORDER  OF  EVIDENCE. 

(a)  A  party  should  not  be  allowed  to  call  a  party  as  a 
witness,  supposed  to  be  adverse,  in  anticipation  of  his  being 
called  by  the  other  side,  and  elicit  from  him  admissions,  other- 
wise incompetent,  with  a  view  of  laying  ground  for  his  im- 
peachment. 

Roush  V.  Wensel,  8  C.  D.  141,  15  C.  C.  133. 

Cf.  Moore  V.  Caldwell,  6  C.  C.   (N.S.)  484,  17  C.  D.  440,  5!). 

(b)  A  question  which  leads  an  impeaching  Avitness  to  an- 
swer by  using  the  same  words  which  a  former  witness  has 
denied  using,  is  incompetent;  and  permitting  such  a  question 
to  be  answered  constitutes  error. 

Interurban   Co.  v.  Haines,   12   C.   C.    (N.S.)    17,  21    C.  D.  265. 
Cf.  Americus  v.  :\lcUowell,   16  C.  C.    (N.S.)    573,  27  C.  D.  504. 

(c)  On  cross-examination  of  a  witness  as  to  prior  state- 
ments inconsistent  with  his  testimony-in-ehief,  it  is  not 
necessary  for  the  cross-examiner  to  state  Avhat  he  expects 
to  prove  by  the  question,  as  the  purpose  and  object  of  the 
inquiry  is  sufficiently  manifest  without  such   disclosure. 

Burt  V.  State,  23  0.  S.  394. 

(d)  It  is  proper  to  permit  a  witness,  who  has  made  state- 
ments out  of  court  at  variance  with  his  testimony  given  in 
the  trial,  to  explain  or  give  his  reasons  for  making  the  con- 
tradictory statements;  such  conflict  in  statement  goes  only  to 


399  IMPEACHMENT  §321 

affect  his  credibility,  and  does  not  render  him  incompetent  or 
necessarily  render  his  testimony  incredible. 

Baum  V.  State.  G  C.  C.  (N.S.)  515,  17  C.  D.  569. 

Spaulding   v.   Railway,    10   C.    D.   600,   20   C.   C.   '.Ml. 

(e)  A  party  desiring  to  offer  independent  evidence  with 
the  view  of  impeaching  the  testimony  of  a  witness  of  his  ad- 
versary, can  not  do  so  during  his  cross-examination  of  such 
witness,  but  must  wait  until  the  time  arrives  for  him  to  offer 
his  own  evidence. 

Benefit  Ass'n  v.  Harding,  7  C.  C.  438,  4  C.  D.  608. 

(f)  "Witnesses  called  to  impeach  another  witness  by  prov- 
ing a  conversation  denied  by  him,  may  be  cross-examined  as 
to  further  statements  made  by  him  in  the  same  conversation. 

Finnegan  v.  Sullivan,  4  C.  D.  292,  18  C.  C.  876. 

(g")  The  re-examination  of  the  witness  as  to  his  contra- 
dictory statements  must  wait  until  the  impeaching  evidence 
is  introduced.  Thus,  a  witness  who  testified  that  defendant 
struck  the  fatal  blow  having  denied  on  cross-examination  a 
prior  declaration  that  it  was  not  defendant  who  struck  the 
blow,  can  not  be  asked  by  the  state  what  he  did  say  in  the 
conversation  until  after  testimony  is  offered  to  contradict  him. 

Dickson  v.  State,  39  0.  S.  73. 

(h)  A  witness  called  to  impeach  another  by  showing 
statements  inconsistent  with  those  testified  to,  may  himself, 
the  proper  foundation  being  laid  therefor,  be  contradicted 
by  showing  statements  made  by  him  out  of  court  inconsistent 
with  those  testified  to  by  him  in  contradiction  of  such  other 
witness. 

Berry  v.  State,  31  0.  S.  219. 

321.  REHABILITATION. 

(a)  The  impeachment  of  the  credit  of  a  witness  by  show- 
hig  that  he  has  made  statements  at  other  times  contradictory 
of  his  testimony  given  on  the  trial,  has  the  same  effect  as  his 
contradictory  statements  made  during  his  examiiuition.  It 
does  not  lay  the  foundation  for  sustaining  him  l»y  proof  of 
his  reputation  for  truth. 

Webb  V.  State,  29  O.  S.  351,  7. 


§321  METZLER'S    OHIO    TRIAL    EVIDENCE  400 

(b)  A  witness  impeached  by  contradictory  statements  can 
not  be  sustained  by  showing  that  he  had  made  consistent 
statements.  Where  a  witness  is  shown  to  have  made  state- 
ments contradictory  to  those  made  by  him  on  the  trial,  it  is 
error  to  permit  an  attempt  to  rehabilitate  the  impeached  wit- 
ness by  proving  that  he  had  made  prior  statements  similar 
to  those  made  on  the  trial;  because  it  Avould  not  prove  the 
truthfulness  of  the  witness,  nor  the  reliability  of  his  recollec- 
tion, nor  that  there  was  no  inconsistency  between  the  two 
statements. 

Traction  Co.  v.  Stephens,  75  0.  S.  171,  182. 


CHAPTER  XXIII. 

FACTS  AND  OPINIONS. 

322.  General  principles. 

S2a.  Conclusions  excluded. 

;i24.  Belief  of  a  party. 

'.'.2i').  Intent  of   a   ]>arty. 

;i2(i.  Oi)iiii()ns  of  non-experts. 

327.  Opinions  of  experts — Principles. 

o2iS.  Ivxperts — Preliminary   exaniina/tion. 

;^2i).  Experts — Province  of  jury. 

330.  Hypothetical  (piestion.^ — Facts. 

.3;>1.  Hy])otiietical  questions — Assumptions. 

332.  Ex])erts — Examination 

li'Mi.  Experts — Impcacliment. 

','34.  Hearsay   opinion    excluded. 

335.  Vital  issues  for  jury. 

33(5.  Exceptions  to  rule. 

322.  GENERAL  PRINCIPLES. 

(a)  The  general  rule  is  that  a  witness  may  only  testify 

to  those  facts  which  he  knows  of  his  own  knowledge — those 

which  are  derived  through  his  own  senses  or  perce])tions — and 

not  to  inferences  or  conchisions  deducible  from   facts  known 

to  himself  and  not  disclo.sed  to  the  court  and  jury.     AVhen 

the  statement  of  a  witness  is  a  matter  of  mere  argument  and 

opinion  upon  a  point  when  he  could  state  the  facts,  it  is  not 

proper  evidence. 

All)atross    (Ptht.)    v.    Wayne.    Ifi    Oh.   513,   4. 
See  Crowell  v.  I'.ank,  3  O.  S.  40(). 
State  V.  Lcutli,  5  C.  C.  !)4,  3  C.  D.  48. 

(b)  A  witness  may  state  his  impression.  This  rule  results 
from  the  fact  that  a  witness  can  not  l)e  required  to  depose 
positively,  when  liis  i-ecollectioti  is  not  disliiicf  and  certain. 
But  the  impression  of  a  witness,  1o  he  adniissihlc  as  evidence, 
must  be.  not  the  residt  of  a  process  of  reason  and  .jndgment, 
but  simply  facts  impressed   on  his   inenioi'v,  and   of  wliieli   his 

401 


§323  METZLER'S    OHIO    TRIAL    EVIDENCE  402 

recollection    is    not    sufficiently    distinct    to    arise    to    positive 
assurance. 

Crowoll  V.  IJaiik,  3  0.  S.  406. 

Cf.  State  V.  Lopa,  96  O.  S.  410,  412. 

(c)  When  a  witness  expresses  his  belief  that  a  thing  hap- 
pened, and  it  appears  to  the  court  after  examining  him,  if 
necessary,  that  he  is  stating  an  impression  founded  upon  per- 
ception, and  not  upon  information  or  deduction,  his  answer 
should  be  admitted,  unless  the  court,  in  its  discretion,  thinks 
the  impression  is  too  faint  to  have  any  value.  And  where  a 
defendant  is  convicted  on  the  belief  or  slight  impression  of  a 
witness,  the  judgment  will  be  reversed. 

Leach  v.  Calder,  12  0.  D.  211. 
Crowell  V.  Bank,  3  0.  S.  406,  412. 
Silver  v.  State,  17  Oh.  36.5,  371. 

323.  CONCLUSIONS  EXCLUDED. 

(a)  "Where  it  is  practicable  for  the  witnesses  to  place  palpa- 
bly before  the  jury  the  facts  supporting  their  opinions,  and 
where  the  matter  is  not  susceptible  of  expert  testimony,  they 
should  be  restricted  in  their  testimony  to  the  facts;  and  the 
jurors  should  be  left  to  form  their  own  opinions  from  these 
facts,  unaided  by  the  mere  opinions  of  the  witnesses. 

Railroad  v.  Sclmltz,  43  O.  S.  270,  P2. 

Coal  Co.  V.  Jones,  11  C.  C.    (N.S.)   203,  20  C.  D.  .5SS. 

Traction  Co.  v.  Woolcy.  0  N.  1'.    iX.S.)    444.  17  O.  D.  10. 

(b)  The  testimony  of  a  witness  consisting  of  the  narra- 
tion of  a  conversation  of  a  party  is  always  to  be  received 
with  great  caution.  And  to  allow  a  witness,  after  the  nar- 
ration of  a  conversation,  to  state  his  conclusions  or  under- 
standing from  the  conversation,  as  to  the  meaning  or  under- 
standing of  the  parties  to  the  conversation,  would  be  a-  most 
dangerous  relaxation  of  the  rules  of  evidence. 

Crowell  V.  Bank,  3  0.  S.  406  and  412. 

Grand  Lodjre  v.  Bunkers,  13  C.  1).  4S7.  3  C.  ('.  (N.S.)  2.)6. 

(c)  The  rule  applies  to  a  witness  who  took  part  in  the 
conversation.  In  narrating  a  conversation  held  between  him- 
self and   another.   ;)    ^\  itness   can    not   be   permitted   to   testify 


403  FACTS   AND    OPINIONS  §323 

Avhat  he  meant  by  the  questions  asked  by  himself;  his  mean- 
ing must  be  gathered  from  the  import  of  the  hinguage  with- 
out the  aid  of  a  subsequent  explanation  of  his  own  meaning. 
Haywood  v.  Foster,  16  Oli.  SS. 

(d)  The  opinion  of  a  witness,  based  upon  his  knowledge 
of  the  manner  in  which  a  family  lived,  as  to  the  probable  an- 
nual expense  of  maintaining  their  house,  is  not  e-ompetent. 
The  general  rule  is  that  opinions  can  not  be  received  in  evi- 
dence:  and  this  ease  does  not  come  within  any  of  the  excep- 
tions. 

In  re  Ealie,  12  O.  D.  5!)0. 

(e)  A  witness  having  exhausted  his  knowledge  of  the 
facts  concerning  the  condition  of  a  room  soon  after  the  com- 
mitting of  murder  therein,  and  having  described  the  extent 
to  which  the  floor  was  covered  with  blood,  should  not  be 
allowed  to  answer  the  question  whether  he  could  have  gone 
to  bed  without  getting  his  feet  bloody. 

Cottell   V.  state,  5  C.  D.  472,   12  C.  C.  4(17.   470. 

(f)  The  opinions  of  witnesses  engaged  in  the  business  of 

insurance  as  to  the  materiality   of  Ihe  fact  that  the  building 

insured    had    shortly    before    been    on    (ire,    and    the    effect    it 

would  have  had  upon  the  mind  of  a  prudent  underwriter,  if 

communicated,   are   not   admissible   in    evidence.      And    a   life 

insurance    company's    officers    can    not    testify    that    a    policy 

would  not  have  been  issued  had  they  known  the  state  of  the 

health  of  the  insured.     These  questions  pertain  to  matters  of 

common  and  ordinary   knowledge,  and   the  jury  must  decide 

them. 

Insurance  Co.  v.  Harmer,  2  0.  S.  452. 
liisii ranee  Co.  v.  Kshelnian,  30  O.  S.  647. 

(g)  Tiie  statements  of  a  woman  after  the  date  of  an  alleged 
operation  to  i)r()ciir('  an  abortion  n]u)U  her.  to  the  effect  that  she 
was  still  pregnant,  arc  not  admissible  as  expressions  of  bodily 
feelings;  l)nt  such  statements  relate  ratln-r  to  the  opinion  of  the 
woman  concei-ning  her  condition  and  should  l)e  cxclndetl. 

Benedict   v.   State.   44  O.  S.   670,  6S7. 


§324  METZLER'S    OHIO   TRIAL    EVIDENCE  404 

(h)  It  is  prejudicial  error  to  admit  a  statement  of  a  con- 
clusion by  a  witness  who  has  stated  no  facts  from  which  the 
conclusion  can  be  drawn,  the  jury  being  quite  as  competent 
as  the  witness  to  draw  a  conclusion  from  the  facts.  But  the 
statement  of  a  conclusion  may  be  rendered  harmless  where 
the  answer  put  the  jury  in  the  possession  of  the  facts  upon 
which  the  witness  based  his  opinion. 

Kolin  V.  State,  12  C.  C.   (X.S.)  107.  22  C.  D.  711. 

Jewelry  Co.  v.  Hazen,  G  C.  C.    (N.S.)    60G,  17  C.  D.  679. 

324.  BELIEF  OF  A  PARTY. 

(a)  The  general  rule  requiring  a  witness  to  confine  him- 
self to  facts  excludes  the  inferences,  conclusions  and  beliefs 
of  a  party.  However,  there  are  some  exceptions  to  this  rule. 
Exceptions  often  occur  Avhen  the  question  is  whether  a  person 
acted  with  prudence,  in  good  faith  or  without  malice;  when 
these  questions  arise,  the  belief  of  such  person  may  become 
proper  evidence. 

(b)  Where  the  defendant  is  examined  as  a  witness  on  the 
trial  of  an  action  for  malicious  prosecution,  he  may  be  allowed 
to  testify  that  at  the  time  he  commenced  the  prosecution  com- 
plained of,  he  believed  that  the  plaintiff  was  guilty  of  the 
charge  made  against  him ;  or  he  may  testify  that  he  had  no 
malice  against  plaintiff,  but  caused  his  arrest  in  good  faith. 

Wliite  V.  Tucker.  16  O.  S.  468. 

Sclnvart/,  v.  Fridriek.  16  C.  C.   (X.S.)   200. 

Cf.  John  V.  Bridgman,  27  O.  S.  22,  4.3. 

(c)  Under  a  chattel  mortgage  authorizing  the  mortgagee 
to  take  possession  of  the  mortgaged  goods  whenever  he  deems 
himself  in  danger  of  losing  any  part  of  his  debt  by  delay,  he 
may  take  possession  whenever,  in  good  faith  and  on  facts 
arising  sinee  making  the  mortgage,  he  deems  himself  in  dan- 
ger. And  the  mortgagee,  if  a  Avitness,  may  testify  as  to 
whether  or  not  he  did  deem  himself  in  danger  of  losing  any 
part  of  his  claim. 

Barrett  v.  Hart,  42  0.  S.  41. 

(d)  In  an  action  for  damages  for  injury  from  defective 
machinery,  the  employe  may  testify  that  he  relied  on  a  prom- 


405  FACTS  AND   OPINIONS  5  325 

ise  by  the  employer  to  have  the  defect  repaired,  and  that  the 
effect  of  the  promise  was  to  keep  him  at  work  until  the  in- 
jury: for  a  party  may  testify  to  his  own  belief  in  and  his 
reliance  on  a  promise. 

stove  Co.  V.  Reep,  n  C.  1).  4(i7,  IS  C.  C.  5S. 

(e)  "Whether  a  buyer's  deceit  as  to  his  pecuniary  con- 
dition at  one  purchase  on  credit  constitutes  fraud  on  the  same 
seller  at  a  later  sale  is  a  question  of  fact.  And  in  such  case 
the  seller  may  testify  that  he  still  relied  on  the  prior  state- 
ment. 

G rover  v.  Taylor,   53  O.  S.  621. 

(f)  In  an  action  upon  a  written  instrument,  to  which  the 
defendant  alleges  that  his  signature  was  secured  by  duress 
by  threats  to  have  his  son  arrested,  the  effect  of  the  threats 
upon  the  defendant  was  a  question  of  fact;  and  it  was  com- 
petent for  him  to  testify  that  he  would  not  have  signed  it  if 
the  threats  had  not  been  made. 

Stone  Co.  v.  ^Miigham,  23  C.   C.    (X.S.)    520. 

325.   INTENT  OF  A  PARTY. 

(a)  Another  exception  is  the  intent  of  a  party.  AYhen  a 
person  admits  the  doing  of  an  act,  and  its  validity  turns  on 
the  intent  with  which  the  act  was  done,  it  is  proper  to  a.sk 
the  witness  what  his  intention  was  in  doinir  tin"  act.  So  when 
the  holder  of  a  promissory  note  made  an  alteration  on  the 
note,  he  may  testify  that  he  made  it  innocently  and  without 
any  fraudulent  intent  on  his  part. 

Tiickor  V.  Hendricks.  2  C.  C.  (X.S.)  122,  M  C.  D.  42(1. 

(b)  Whenever  the  intent  with  which  an  act  is  done  be- 
comes the  subject  of  inquiry,  the  person  performing  the  act, 
if  competent  to  testify  to  the  act  itself,  is  competent  to  testify 
as  to  the  intent;  for  instance,  lluit  a  conveyance  was  in  good 
faith  and  without  intent  to  (lefrand  ei-edifors,  oi-  that  the 
delivery  by  grantor  of  a  deed  for  record  was  for  the  grantee's 
nse. 

Coal  Co.  V.  Davenport,  37  0    S.  104. 
Rollin-,'  Mill  V.  rackanl,   1  C.  ( '.  7(i,  1  C.  I).  40. 
Pierce  v.  Wliite.  22  I'.iill.  OS,  10  ().  I).  R.  552. 
Mitchell  V.  Ityan,  3  O.  S.  377,  385. 


5  326  METZLER'S    OHIO    TRIAL    EVIDENCE  406 

(c)  But  a  party  may  not  always  testify  as  to  his  intent 
in  doing  an  act.  Where  the  facts  proved  against  a  party  are 
equivalent  to  an  illegal  intent,  or  when  by  the  rules  of  law  a 
certain  intention  is  evidenced  by  the  act  itself,  he  can  not, 
when  testifying  in  his  own  behalf,  be  asked  as  to  his  intent. 
This  is  the  rule,  because  his  opinion  would  most  likely  be  self- 
serving  and  a  wrong  characterizing  of  his  own  conduct,  and 
would  substitute  the  opinion  of  an  interested  witness  for  that 
of  the  jury. 

Sop  Sclnvartz  v.  Fridrick,  16  C.  C.   (X.S.1    200.  201. 
Cf.  .Tolin    V.    Bridpman.   27   O.   S.   22.   4:1. 

(d)  Where  a  married  Avoman  acquires  the  title  to  prop- 
erty by  purchase  and  executes  her  promissory  note  therefor, 
an  implication  arises,  in  the  absence  of  proof  of  a  different 
understanding,  that  she  thereby  intended  to  charge  her  sepa- 
rate estate  with  its  payment.  And  in  such  case,  the  wife  wnll 
not  be  permitted  to  testify  that  she  had  no  intention  to 
charge  her  separate  estate  with  the  payment  of  such  note. 

Avery  v.  Vansickle.  .S.i  O.  S.  270. 

See  Hershizer  v.  Florence,  30  O.  S.  516. 

326.  OPINIONS  OF  NON-EXPERTS. 

(a)  In  matters  within  the  common  observation  and  ex- 
perience of  men,  non-experts  may.  in  cases  where  it  is  not 
practicable  to  place  before  the  jury  all  the  primary  facts  upon 
which  they  are  founded,  state  their  opinion  from  such  facts. 
where  such  opinions  involve  conclusions  material  to  the  sub- 
ject of  inquiry.  Tn  such  cases,  the  witnesses  are  required, 
so  far  as  may  be,  to  state  the  primary  facts  which  support 
their  opinions. 

Eailroarl   v.   Sclnilt?;,   43   0.   S.  270.   82. 
Railways  v.  Stoltz,  0  C.  D.  638,  18  C.  C.  93. 
Railway  v.  Van  Horn,  21   C.  C.  337.  12  C.  D.  106. 
Railway   v.   Ullom,   20   C.   C.   .'>12.    11    C.   D.   321. 

(b)  For  a  witness  to  undertake  to  place  before  a  jury 
all  the  facts  and  symptoms  from  which  he  had  formed  the 
opinion  that  a  person  was  angry,  drunk,  sick,  in  love,  or  in- 
sane, would  be  to  abandon  himself  to  a  hopeless  attempt  at 
mimicry  and  undignified  descriptions  and  imitations,  as  ludi- 


407  FACTS   AND    OPINIONS  §  ^20 

erous  as  they  Avould  be  vain  and  unprofitable.  "Where  the 
faets  can  not  be  made  palpable  to  the  jnrors  so  that  their 
means  of  forming'  ojiinions  are  ]">raetieally  eqnal  to  tliose  of 
the  "witnesses,  opinions  of  snoli  Avitnesses  may  be  received, 
accompanied  by  such  facts  supporting-  them  as  they  may  be 
able  to  place  intelligently  before  the  jury. 
Railway  v.  Sduilfz,  4?,  O    S.  270,  2S1,  2^r, 

(c)  A  non-expert  -witness  should  not  be  permitted  to  an- 
swer questions  concerning  whicli  he  has  no  more  knowledge 
and  has  had  no  more  exjierience  than  men  of  ordinary  infor- 
mation and  intelligence.  T'nless  a  witness  first  qualifies  him- 
self by  showing-  that  he  has  some  knowledge  on  the  subject, 
it  is  error  to  allow  him  to  testify  over  the  objection  of  the 
other  side  as  to  the  identity  of  a  person. 

Seizor   V.   Coal    Co.,   12   C.  D.  787. 

Eaihvay   v.   Ullom,   20   C.  C.   512,   11   C.  D.   321. 

Railroad  v.  Marsh,  63  0.  S.  236. 

(d)  In  a  trial  for  murder,  it  is  competent  for  the  defend- 
ant to  ask  a  Avitness  who  had  seen  the  conflict  Avhether  or  not 
there  was  time  enough  for  him  to  escape  and  get  out  of  the 
way,  before  the  deceased  rushed  on  him.  The  fact  here 
sought  to  be  proved  could  not  well  be  proved  to  a  jury  by  a 
statement  of  facts.  The  time  occupied  by  the  deceased,  in 
passing  from  where  he  stood  to  the  defendant,  a  distance  of 
only  a^few  feet,  could  hardly  be  stated  with  any  accuracy  of 
measurement.  The  rapidity  of  his  motion  could  not  be  calcu- 
lated, so  as  to  convey  any  very  definite  idea  of  his  velocity. 
A  variety  of  circumstances  that  could  only  be  perceived,  but 
not  detailed,  would  constitute  the  aggregate  from  which  the 
opinion  could  be  formed. 

Stewart  v.  State,   19  Oli.  302,  307. 
Cf.   State   V.   Rhoads,   29   O.    S.    171. 

(e)  Tn  answer  to  a  question  as  to  how  much  lime  a 
switchman  has  in  coupling  cars,  it  is  competent  for  a  wit- 
ness to  state  that  the  operation  requires  such  (piickness  of 
movement  that  his  time  and  attention  would  be  occupied  m 
the  performance  of  this  duty;  and  he  would  not  have  tune 
to  look  out  for  any  defect  about  the  car. 

Railroad    v.   Waterworth,   21    C.   C   405.    11    C   D.   121. 


§327  METZLER'S    OHIO    TRIAL    EVIDENCE  4C3 

(f)  When  intoxicating  liquors  are  sold  by  the  drink  un- 
der a  fictitious  name,  a  person  Avho  has  drunk  of  the  liquor 
so  sold  may,  as  a  Avituess,  be  asked  his  opinion  as  to  its  true 
name  and  quality,  and  may  be  pressed  for  an  answer  if  he 
denies  being  a  judge. 

Bean    v.    Green,    33    0.    S.    444. 

327.  OPINIONS  OF  EXPERTS— PRINCIPLES. 

(a)  In  everything  pertaining  to  the  ordinary  and  common 
knowledge  of  mankind,  jurors  are  supposed  to  be  competent 
and,  indeed,  peculiarly  qualified  to  determine  the  experienced 
connection  between  cause  and  effect,  and  to  draw  the  proper 
conclusion  from  the  facts  before  them.  But  they  are  selected 
with  no  view  to  their  knowledge  of  particular  services, 
trades,  and  professions,  requiring  a  course  of  previous  study 
and  preparation.  As  questions  connected  with  these  will  very 
often  arise,  and  as  the  law  deprives  the  jury  of  no  reliable 
means  for  ascertaining  the  truth,  it  allows  them  to  be  aided, 
in  making  the  proper  application,  by  the  opinions  of  wit- 
nesses possessing  peculiar  skill  in  those  particular  depart- 
ments. But  this  is  only  permitted  where  the  nature  of  the 
question  at  issue  is  such  that  the  jury  are  incompetent  to 
draw  their  own  conclusions  from  the  facts,  without  the  aid 
of  persons  whose  skill  or  knoAvledge  is  superior  to  their  own, 
and  such  as  inexperienced  persons  are  unlikely  to  prove 
capable  of  forming  a  correct  judgment  upon,  without  such 
assistance. 

Insurance   Co.  v.  Harmer,   2   O.    S.   452,   456. 

(b)  Opinion  evidence  is  not  competent  where  the  matter 
inquired  about  is  one  within  the  common  knowledge  of  men 
of  ordinary  information,  and  it  is  practicable  to  place  before 
the  jury  all  the  primary  facts  upon  which  a  conclusion  is 
to  be  based;  but  where  a  witness  is  shown  to  be  learned, 
skilled  or  experienced  in  a  particular  business,  he  may  be 
asked  to  give  an  opinion  as  to  pertinent  matters  which  are 
not  the  subject  of  common  knowledge,  and  as  to  which  the 
jury  is  not  so  competent  as  is  the  witness  to  draw  the  proper 
conclusion  from  the  general  facts  proven. 

Torpedo   Co.   v.   Fislibnrn,   61    O.   S.   608. 


409  .       FACTS    AND    OPINIONS  §  328 

(c)  The  general  rule  and  the  exception  are  aKke  appli- 
cable to  every  possible  class  of  cases;  and  wlietlier  the  one 
or  the  other  shall  be  applied — whether  the  jury  shall  be  left 
to  make  the  proper  deduction  from  each  fact  proved,  or  may 
be  aided  by  the  opinions  of  experts — must,  in  every  ease,  de- 
pend upon  the  nature  of  the  question  involved.  If  the  con- 
nection between  the  fact  and  its  experienced  consequences 
belongs  to  the  ordinary  information  of  men,  the  general  rule 
must  govern ;  but  where  the  nature  of  the  inquiry  involves  a 
question  of  science  or  art,  or  of  professional  or  mechanical 
skill,  the  opinions  of  witnesses  skilled  in  tlic  ])articular  busi- 
ness to  which  the  question  relates  are  admissible. 

Insurance   Co.   v.   ITarnior,   2   O.   S.   452,   45G. 

Crowell   V.   Bank,   3   0.   S.   40G. 

328.  EXPERTS— PRELIMINARY  EXAMINATION. 

(a)  The  question  Avhether  expert  testimony  is  competent 
is  not  always  clear.  If  in  the  judgment  of  the  court  the 
opinion  of  one  experienced  in  the  particular  calling  would 
aid  the  jury  in  dealing  with  the  facts  of  the  case,  it  is  proper 
to  admit  it.  To  a  certain  extent  the  calling  of  experts  is  dis- 
cretionary with  the  court :  and  it  rests  largely  in  its  discretion 
when  the  case  is  tried  to  the  court.  A  judgment  will  not  be 
reversed  for  admitting  immaterial  expert  testimony  when  it 
was  not  prejudicial. 

TJailwav  v.  Terry,   14   C.   C  .53(5,   7   C.  D.   597. 
Kittrc.i-rc  V.  CiTu  iniiati,  2  X.  P.    (X.S.)    6,  14  0.  D.  504. 
Railroad  v.  Defiance,  52  0.  S.  262. 

(b)  The  witness  should  first  qualify  as  an  expert  by 
stating  his  means  of  knowledge  which  enables  him  to  form  a 
correct  opinion;  and  it  is  for  the  court,  in  its  discretion,  to 
decide  whether  the  witness  is  a  competent  expert.  And  the 
ruling  is  not  reversible,  unless  founded  on  some  error  of  law, 
some  serious  mistake  or  an  abuse  of  discretion.  Even  though 
the  preliminary  examinjitioii  of  a  Avitness  does  nut  (pialify 
him  as  an  expert,  it  is  not  reversible  if  all  of  his  testimony  in 
chief,  together  with  that  brought  out  on  cross-exami!iatioTi, 
has  the  effect  of  qualifying  him. 

Dock   Co.  V.  Trapnell,  23   C   C.    (N.S.)    408. 
McCrack<.n    v.    West,    17    Oli.    10,   2.3. 
Hathaway  v.  Farley,  22   C   C.    (X.R.)    4fi2. 


§  330  METZLER'S    OHIO    TRIAL    EVIDENCE  410 

329.  EXPERTS— PROVINCE  OF  JURY. 

(a)  It  is  proper  on  the  examination  of  an  expert,  even  on 

his  examination  in  chief,  to  require  him  to  state  the  reasons 

for  his  opinion,  so  that  the  jury  will  be  enabled  to  estimate 

the  value  of  his  testimony,  and  the  adverse  party  will  have 

an  opportunity  to  cross-examine  as  to  the  opinion, 

I^rarshall   v.   Thomas,   21    C.   J),   3fi3,    12   C.   C.    (X.S.)    3.53,    358. 
Koons    V.    State,    36    O.   S.    1!)5,  -191). 
McCracken    v.    West,    17    0!i.    16,   23. 
Clark   V.    State,    12    Oh.    483. 

(b)  The  jury  are  the  sole  judges  of  the  weight  to  be 
given  expert  testimony.  A  jury  may  properly  accept  the 
testimony  of  the  decedent's  own  physician  as  to  the  cause  of 
his  death,  as  against  the  testimony  of  the  physician  of  the 
defendant  company  supported  by  a  medical  expert.  There 
is  an  increasing  loss  of  confidence  in  expert  testimony,  espe- 
cially opinions  on  hypothetical  questions. 

Railway  v.  Kiner,  2  0.  App.  82,  17  C.  C.    (X.S.)   431,  2.5  C.  D.  175. 

Bahl  V.  Byal,  90  0.   S.    129,    138. 

Beresford  V.  Stanley,  6  N.  P.  38,  9   0.  D.   134,   141. 

Cf.  Brewing  Co.  v.  Opp,  9  C.  D.  516,  17  C.  C.  465,  70. 

(c)  It   is   improper   for   the   trial-court   to    suggest   to   the 

jury  that  expert  witnesses  might,  through  inattention,  fail  to 

comprehend  the  true  meaning  of  long  hypothetical  questions. 

To   ascribe  inatteii'ion  to   them,   even  by  way  of  suggestion, 

may   well   mislead   the   jury   into    speculation   concerning    the 

unreliability  of  expert   testimony  even  within   the   sphere   of 

its  conceded  value, 

Ellis  V.   Twiggs,    17    C.   C.    (X.S.)    172. 

Cf.  Traction   Co.  v.  Biireh,   4   0.  L.   B.   660,   17   0.  D.   739. 

330.  HYPOTHETICAL  QUESTIONS— FACTS. 

(a)  Witnesses  shown  to  be  learned,  skilled  or  experienced 
in  a  particular  art,  science,  trade  or  business,  may,  in  a 
proper  case,  give  their  opinions  upon  a  given  state  of  facts 
j)ut  in  the  form  of  a  hypothetical  question.  It  is  not  neces- 
sary that  such  a  question  be  based  on  conceded  facts  or  be 


411  FACTS    AND    OPINIONS  §  330 

stated  in  the  laii<iua^e  of  the  witness;  but   it   must  be  based 
on  facts  which  the  evidence  tends  to  prove. 

Pvailroad    v.    Scliiilt/,    43    0.    S.    270,    282. 

Bd.    of    Missions    v.   IJi-van,   2    0.    App.    1S2,    17    C.   C.    (X.S.)    27').   24 
C.  D.  318,  28  0.  C.  A.  217. 

(b)  A  hypothetical  qnestion  should  not  be  excluded  because 
it  is  not  framed  n])on  the  best  evidence;  it  is  proper  and  shouM 
be  permitted  to  be  answered  if  snpported  by  evidence  tending; 
to  prove  the  facts  therein  stated. 

McFarland  v.  Clark,  8  O   App   32(1,  28  O.  C.  A.  217,  29  C.  D.  449. 

(c)  A  hypothetical  qnestion  is  not  improper  simply  be- 
canse  it  includes  only  a  part  of  the  facts  in  evidence;  addi- 
tional facts  may  be  developed  on  cross-examination.  And 
counsel  may  assume  the  facts  in  accordance  with  his  theory 
of  them,  if  snpported  by  the  evidence  of  some  of  his  wit- 
nesses. But  if  the  hypothetical  question  contains  material 
exaggerations  of  facts,  and  is  umvarranted  ])y  any  testimony 
in  the  case,  it  is  improper  and  should  not  be  allowed. 

McLoan  v.  Cincinnati,  3  X.  P.    (X.S.)    G7G,  10  O.  D.  459. 
r.ailway   v.   W  hidden,  2   C.  C.    (X.S.)    544,   13   C.   D.  85. 
Williams   V.    Brown,   28    0.   S.   547. 
Haas  V.  Kundtz,  94  0.  S.  238,  244. 

(d)  AVluMi  the  evidence  is  incomplete  for  a  hypothetical 
question,  it  is  an  abuse  of  discretion  to  refuse  to  permit  a 
Avitness  to  be  recalled  for  the  purpose  of  re-examination  on 
matters  he  has  already  testified  to,  where  his  original  an- 
swers are  ambiguous  and  it  is  desired  to  make  them  definite, 
if  ])ossible,  so  as  to  lay  the  ground  for  putting  the  hypothetical 
question  to  an  expert  witness. 

llixson  V.  Babe,   IS  C.  C.    (N.S.)    5G9. 

(e)  Where  an  expert  has  j)ersonal  knowledge  of  the  facts 
he  may  give  an  opinion  on  Ihem  to  the  same  extent  that  a 
stranger  to  them  could  o!i  a  hypothetical  question.  If  the 
witness  is  a  stranger  to  the  actual  facts,  it  will  be  necessary 
to  assume  a  state  of  facts  as  the  foundation  of  his  opinion; 
but  no  such  assumption  is  necessary  when  the  witness  is,  or 


§  331  METZLER'S    OHIO    TRIAL    EVIDENCE  412 

is   ])roperly  presumed   to  be,  personally  acquainted  with   the 
material  facts  of  the  case. 

Railroad  v.  Bailey,   11  0.  S.  333,  337. 

Cf.  Harris  v.  Railway,  4  O.  App.  108,  21  C.  C.   (N.S.)   209. 

(f)  But  it  is  not  proper  as  a   general  rule  to  inquire  of 

a  witness  upon  the  stand,  who  has  heard  the  testimony  in  a 

case,  his  opinion,   from   the   knowledge  he   derived   from   the 

testimony,  as  to   a  particular  -fact,   which   is  material  in   the 

determination  of  the  issue  in  the  case.     But  it  is  not  error  in 

such  a  case  to  refer  to  a  fact  in  evidence,  when  the  fact  was 

agreed  to  by  all  the  witnesses. 

Insurance  Co.  v.  May,  20  Oli.  211. 

Shepherd   v.   Willis,    19    Oh.    142. 

Railway  v.  Whiddon,  13  C.  D.  85,  2  C.  C.    (N.S.)    544,  7. 

Cf.    Williams   v.   Brown,  28   0.    S.   547. 

331.  HYPOTHETICAL  QUESTIONS— ASSUMPTIONS. 

(a)  Hypothetical  questions  addressed  to  experts  are  im- 
proper when  they  assume  facts  as  to  which  there  is  no  evi- 
dence ;  and  it  is  not  error  to  exclude  them.  On  the  other 
hand,  it  is  prejudicial  error  to  permit  such  questions  to  be 
answered,  Avhen  the  testimony  may  have  an  effect  on  the 
verdict. 

Railway  v.  Ilobart,  13  C.  C   (N.S.)   592,  22  C.  D.  154. 
Dctwiler  v.  Toledo,   G   C.   D.    300,    13    C.   C.  579. 
Railway  v.  Everett,  8  C.   D.  210,  15  C.  C.   181. 

(b)  It  is  not  prejudicial  error  to  sustain  an  objection  to  a 
hypothetical  question  which  is  based  on  an  assumed  fact  that 
is  supported  by  some  evidence,  if  it  is  clearly  disproved  by  the 

manifest  weight  of  the  evidence. 
Rogers  v.  Monroe,  20  C.  C.    (N.S.)    193. 

(c)  It  is  error  to  instruct  a  jury  that  the  opinions  of  ex- 
pert witnesses,  based  on  hypothetical  statements  of  fact,  are 
of  little  value  in  case  the  jury  find  the  hypothesis  not  in 
accordance  with  the  facts.  The  jury  should  be  instructed 
that  the  o[)inions  are  of  no  value. 

:\ToT.ean  v.  Cincinnati,  3  N.  P.    (N.S.)    676,   10  O.  D.  459. 

Sharkey  v.  State,  4  C.  C.  101,  2  C.  D.  443. 

West  V.   KiHippenherger,  4   C.   C.    (N.S.)    305.    10   C.    D.    108. 


413  FACTS    AND    OPINIONS  §  331 

(d)  A  charge  that  tlie  value  of  the  opinion  increases  or 
diminishes  in  i)roportion  as  the  facts  assumed  as  its  basis  in 
a  hypothetical  question  tally  with  those  proved  is  erroneous. 
The  charge  should  be  that  if  the  expert  assumed  any  fact  as 
a  basis  of  his  opinion  Avhicli  the  jury  do  not  find  to  be  estab- 
lished, his  opinion  is  of  no  value  unless  such  fact  merely 
affects  the  witness's  coufidencc   in   his  opinion. 

Church  V.  Crocker,  7  C.  C.  327,  4  C.  D.  610. 

(e)  Where  a  hypothetical  question  assumed  the  exist- 
ence of  various  facts  not  apparejitly  immaterial,  which  the 
jury  may  have  found  to  be  not  established  by  tlie  evidence, 
and  there  is  nothinp-  in  the  evidence  to  indicate  that  the  ex- 
pert deemed  such  assumed  but  unproved  facts  immaterial  or 
unessential  to  the  basis  of  the  opinion  testified  to,  it  was  im- 
proper to  charge  the  jury  to  the  effect  that  such  opinion  may 
be  entitled  to  some  weight  or  value  though  the  facts  assumed 
in  the  question  upon  which  the  opinion  was  based  may  not 
be  true,  provided  the  jury  should  find  that  the  facts  were 
substantially  as  assumed. 

West  V.  Knoppenberger,  4  C.  C.    (X.S.)    305,  IG  C.  D.  168. 

(f)  It  is  not  within  the  province  of  the  jury  to  determine 
what  facts  assumed  in  a  hypothetical  question  propounded  to 
an  expert  are  material  or  immaterial.  The  questions  sliould 
be  so  framed  as  to  include  only  such  facts  as  the  evidence 
may  warrant  the  jury  in  finding  to  exist,  and  not  so  as  tn 
allow  the  jury  to  speculate  upon  what  is  material  and  what 
immateriali  A  fortif)ri,  is  tin's  true  Avhere  the  question  as- 
c;-,pr.s  but  tAvo  main  facts  Imth  of  which  seem  to  have  been 
iigarded  as  material  by  the  experts. 

West  V.  Knopponhcrger,  4  C.  C.   (N.S.)    305,  16  C.  D.  168. 
Haas    V.   Kiindtz,   04   0.   S.   238,   246. 

is)  ^Vliere  the  record  in  a  case  shows  that  th(^  foj-ni  of 
the  question  put  to  expert  witnesses  was  in  general  some- 
what irregular,  and  a  departure  from  tlie  oi-dinary  and  Ix'ttrr 
form,  or  when  facts  not  in  evidence  are  assimirii  and  affcr- 
w^ards    corrected,    unless    such    irregularity    resulted    in    some 


§332  METZLER-S    OHIO    TRIAL    EVIDENCE  414 

prejudice  fairly  appearing  upon  the  record,  it  will  not  act  to 
defeat  the  judgment. 

Sdiaal  V.  TTeck,  S  C.  T).  nOf..   17  C.  C.  3S. 

Railroad  v.  Everett,    10  C.  D.  4!i:],   in  C.  C.  20.1. 

(h)  It  has  recently  been  held  by  the  Supreme  Court  that 
where  an  opinion  of  an  expert  witness  is  given  on  a  trial  to 
a  jury  in  answer  to  a  hypothetical  question,  the  court  should 
ins+ruct  the  jury  that  it  is  incumbent  on  the  party  calling 
the  witness  to  establish  the  premises  included  in  the  question 
by  a  preponderance  of  the  evidence.  [The  facts  of  the  case 
show  that  the  rule  was  applied  to  a  question  propounded  by 
the  party  holding  the  burden  of  proof.] 

Haas  V.  Kundtz,  04  O.   R.  23S. 

332.  EXPERTS— EXAMINATION. 

(a)  The  opinion  of  an  expert  can  not  always  be  the  gen- 
erally accepted  conclusion  of  experts  in  his  profession.  There 
may  be  no  such  conclusion.  Where  an  expert  states  in  regard 
to  a  proper  hypothetical  question  that  it  would  be  hard  to 
answer;  and  to  the  cpiestion  Avhether  he  could  give  an  opinion, 
he  answers  that  he  could  possibly  give  his  own  personal 
opinion,  it  is  error  to  exclude  the  question.  But  exclu- 
sion would  not  be  prejudicial  where  the  hypothetical  ques- 
tion is  so  framed  that  it  could  only  be  answered  in  one  way, 
and  the  jury  without  any  assistance  from  any  expert  would 
know  that  it  must  be  answered  in  that  way. 

HixsoTi   V.   Eahe.   IS   C.   C.    (X.S.)    560. 

Cf.  Railway  v.   Ball,  5  C.  C.    (N.S.)    321,  IG  C.  D.  691. 

Hathaway  V.  Farley,   22   C.   C.    (N.S.)    462. 

(b)  Where  a  physician  who  made  a  post  mortem  exami- 
nation testified  to  facts,  but  refused  as  to  matters  of  opinion 
without  extra  compensation,  it  was  held  that  the  fees  of  wit- 
nesses are  arbitrarily  fixed  by  statute  without  reference  to 
class,  countenance,  calling  or  profession  ;  and  that  a  witness, 
M-hether  expert  or  non-expert,  may  not  refuse  to  testify  to 
matters  of  opinion  when  ordered  to  do  so  by  the  court. 

State,  ex  rel.,  v.  Darby,  17  Bull.  62,  9  0.  D.  R.  725. 


415  FACTS    AND    OPINIONS  §333 

(c)  Full  latitude  sliould  be  allowed  in  the  eross-exanii- 
nation  of  opinion  Avitnesses  in  order  to  ascertain  the  basis, 
and  test  the  soundness,  of  their  opinions;  and  their  answers 
in  respect  to  matters  of  common  knowledjife  may  be  of  such 
character  as  to  demonstrate  the  al)surdity  of  their  opinion, 
and  the  unsoundness  of  their  judgment. 

Pvailroad  v.  F.vcri'tt,   10   C.  C.  205.   10  C.   D.  403. 

(d)  The  rule  that  hypotlietical  (piestions  must  be  con- 
fined to  matters  upon  which  evidence  has  been  introduced, 
does  not  extend  in  its  full  force  to  the  cross-examination  of 
such  witness.  In  cross-examining  an  expert  witness,  ques- 
tions may  be  put  which  are  based  upon  some  other  hyjiothe- 
sis  which  the  cross-examiner  hopes  to  establish  by  evidence. 

Walsh   V.   ^Yalsh,   18   C.   C.    (N.S.)    01. 
Railroad  v.  Bailoy,   11   O.  S.  3:53,  335. 

(e)  Evidence  of  similar  instances  (as  of  loss  of  boats 
from  nnknown  causes)  is  generally  regarded  as  too  remote 
as  evidence  in  chief;  but  on  cross-examination,  it  would  be 
competent  for  a  party  to  propound  questions  calling  for 
specific  instances,  in  order  to  ascertain  the  ground  of  the 
witness's  judgment  and  to  test  the  correctness  of  his  testi- 
mony. If  such  evidence  should  be  called  out  on  cross-exami- 
nation, the  party  calling  for  it  would  be  bound  by  the  an- 
swers given,  and  no  collateral  issues  could  arise  on  its  ad- 
mission. 

Insurance  Co.  v.  Tobin,  32  ().   R.   77,  90. 
Cf.  Adams  v.  Brown,  IG  O.  S.  75. 

333.  EXPERTS— IMPEACHMENT. 

(a)  An  expert  who  has  given  an  opinion  as  a  witness 
may  be  impeached  by  showing  that  on  another  occasion  he 
had  given  a  ditiPerent  opinion  concerning  the  same  state  of 
facts.  Where  the  witness  is  the  attending  physician,  con- 
stantly seeing  the  patient  from  time  to  time,  and  Die  (pies- 
tion  put  to  him  called  for  his  opinion  based  on  his  personal 
knowledge  gathered  from  his  frequent  examinations,  it  would 
be  proper  for  tire  adverse  party  to  show  that  the  witness  had 
made  conlradidorv  stntnments   :it    olhrr   tiuics  as   lo   \vli;it    his 


§334  METZLER'S    OHIO    TRIAL    EVIDENCE  416 

opinion   Avas   coneerniii<>:  the   same   state    of   facts,   knowledge 
of  which  he  had  acquired  in  the  same  manner. 
Hoover   V.   Stato,   01    O.   S.   41,   4(3. 

(b)  But  tlie  testimony  of  an  expert  witness,  in  Avliieh 
he  gives  an  opinion  concerning  a  state  of  facts  given  in  a 
hypothetical  question,  can  not  he  impeached  by  testimony 
that  lie  had  at  anotlier  time  exjiressed  an  opinion  as  to  the 
actual  transaction  wliich  was  different  from  his  expert  opin- 
ion on  the  state  of  facts  as  contained  in  the  question. 

Hoover  v.   State,   91    O.   S.   41,   46. 

334.  HEARSAY  OPINION  EXCLUDED. 

(a)  The  questions  of  fact  in  a  case  should  be  determined 
by  the  jury;  and  the  conclusions  of  others,  not  witnesses,  as 
to  such  facts  are  incompetent  as  evidence.  Whether  a  pugi- 
listic encounter  is  a  prize-tight  or  a  boxing  exhibition  is  a 
question  for  the  jury;  and  it  is  not  proper  to  admit  in  evi- 
dence on  that  question  the  rules  adopted  by  associations  for 
conducting  such  contests. 

Seville  v.  State,  49  0.  S.  117. 

(b)  The  official  report  or  opinion  of  a  state  visitor  of 
workshops  and  factories  as  to  the  safety  of  the  shafting  in 
which  the  accident  occurred,  based  upon  an  inspection  made 
after  the  accident,  is  not  proper  evidence  in  the  trial  of  an 
action  for  damages  on  account  of  injuries  received  in  such 
shafting. 

Pen  Co.  V.  Juengling,  2  O.  App.  20,  21  C.  C.    (N.S.)    .593,  2.5  C.  D.  .398. 

(c)  An  ordinance  defining  what  are  the  business  and 
closely  built-up  portions  of  a  municipality  is  not  competent 
as  evidence  in  a  prosecution  for  manslaughter  in  running  an 
automobile  at  a  greater  rate  of  speed  than  is  permitted  by 
statute. 

State   V.    Born,    85    0.    S.   430. 

Cf.  State  V.  Collingsworth,  82  O.  S.  154. 

(d)  A  coroner's  inquest  is  not  evidence  against  the  de- 
fendant on  his  trial  for  murder,  because  its  admission  would 
violate  that  clause  of  the  bill  of  rights  which  entitles  the 
accused  to  meet  the  witnesses  face  to  face.  And  in  a  suit 
on    a   life-insurance    policy,    the    coroner's    inquest    and    testi- 


417  FACTS   AND    OPINIONS  §  335 

mony  taken  by  the  coroner  offered  by  the  company  to  show 
suicide  is  properly  rejected. 

State    V.    Turner,    Wriglit,    20. 

Wheeler   v.    State,    34    0.    S.    304.    SOS. 

Insurance    Co.   v.   Schmidt,   40   O.   S.    112. 

(e)  An  antopsy  paper  signed  by  the  physicians  Avho  made 
a  post  mortem  examination  is  not  admissible  as  substantive 
evidence,  Avhere  the  signatories  had  not  been  placed  under 
oath  and  the  privilege  of  cross-examination  was  not  accorded; 
but  such  a  paper  may  be  used  for  the  purpose  of  refreshing 
the  memory  of  the  Avitnesses.  The  same  rule  seems  to  apply 
to  the  return  of  the  appraisers  in  a  replevin  suit. 

Armstrong  v.  Insurance  Co.,  4  O.  App.  46,  22  C.  C.    (X.S.)    129. 

Wiborg  V.  Pfeifer^  S  N.  P.  273,  11  0.  D.  428. 

Berwanger  v.  Bristol,  3  N.  P.   1(51,  3  0.  D.  G83. 

Cf.  Sigler  v.  Sogers,  46  Bull.  190. 

335.  VITAL  ISSUES  FOR  JURY. 

(a)  A  question  to  a  witness  which  calls  for  his  opinion 
on  the  precise  issue  of  fact  which  the  jury  is  sworn  to  deter- 
mine from  the  evidence  is  incompetent.  Witnesses,  if  prop- 
erly qualified,  may  testify  as  to  facts  of  such  evidential  value 
as  would  assist  the. jury  in  arriving  at  its  conclusions  upon 
the  determinative  questions  of  the  case.  If  the  vital  issues 
involved  could  be  decided  upon  the  mere  o]>inions  of  wit- 
nesses, however  expert,  juries  might  be  dispensed  with  alto- 
gether. 

Fowler  v.  Delaplain,  79  O.  R.  279,  285. 
Torpedo  Co.,  v.  Fishburn,  61  0.  S.  608. 
Oil  Co.  V.  McCrory,  7  C.  D.  344,  14  C.  C.  304. 

(b)  Where  an  issue  is  joined  between  tlic  j)arties  as  to 
whether  a  policy  of  insurance  Avas  held  by  the  defendants  as 
members  of  a  co-partnership,  it  is  error  for  the  court  to  i)cr- 
mit  the  defendants  to  state  their  mere  opinions. 

Swing  V.  Rose,  75  0.  S.  355. 

(c)  Where  the  chief  question  was  whether  an  original 
debtor  was  relea.sed  by  the  cancellation  of  the  note  evidi'iu-ing 
the  indebtedness  and  the  execution  of  a  new  note  to  take  its 
place,  the  intention  of  the  parties  to  treat  the  original  (l<'l)tor 
as  released  is  not  shown  by  testimony  which  amounts   to  a 


§335  METZLER'S    OHIO   TRIAL    EVIDENCE  418 

mere  statement  of  the  opinion  of  the  witness  as  to  the  effect 
of  the  transaction. 

Bank   v.   Patton   Co.,   13   C.   C.    (X.S.)    280.  22   C.  D.   627. 

(d)  A  witness  should  not  be  asked  if  he  did  work  as 
agent  of  the  defendant.  lie  must  state  the  terms  of  his  con- 
tract. And  it  is  proper  to  exclude  the  answer  of  the  payee 
of  a  note  as  to  whether  he  authorized  an  attorney,  wdio  after- 
wards absconded,   to   collect   the   note.     These   questions   are 

for  the  court  and  jury. 

Railroad  v.  Morey,  47   0.   S.  207,  212. 

Evans  v.  Vaughn,  2  O.  App.  421,  20  C.  C.  (N.S.)  425,  26  C.  D.  128. 

(e)  It  is  not  competent  for  a  defendant,  who  is  sued  for 
breach  of  a  contract  which  he  admits,  to  be  asked  by  his  own 
counsel  mIiv  he  broke  his  contract,  for  that  would  permit  him 
to  give  conclusions  instead  of  the  facts  which  he  relied  on 
as  a  justification. 

Hanna   v.   Crozier,   16   C.   C.    (X.S.)    40. 

(f)  Where  one  of  tbe  issues  in  an  action  is  whether  a 
fence  is  sufficient  to  turn  stock,  it  is  error  to  permit  wit- 
nesses, who  show  no  other  qualification  than  that  they  had 
seen  the  fence,  to  give  to  the  jury  their  opinions  as  to  the 
sufficiency  of  the  fence  to  turn  stock. 

Railroad  v.  Sclniltz,  43  0.  S,  270. 

(g)  Where  tbe  cause  or  origin  b£  a  Ere  is  the  subject  of 
inquiry,  it  is  prejudicial  error  to  permit  witnesses  to  state 
the  conclusions  they  have  reached  from  things  they  have  seen 
and  the  facts  they  have  related ;  but  the  witnesses  having 
related  the  facts,  the  jury  should  be  allowed  to  draw  their 

own  conclusions. 

Carter  v.  State,  4  0.  App.  103,  22  C.  C.   (N.S.)   154. 

Canficld   v.   Film   Exchange,   14  C.   C.    (N.S.)    143,  23   C.  D.   157. 

Kohn  V.  State,  12  C.  C.   (N.S.)    197,  22  C.  D.  711. 

(h)  Tn  a  criminal  prosecution  where  the  defendant  seeks 
to  justify  on  the  ground  of  self-defense,  it  is  not  competent 
to  give  in  evidence  the  opinion  of  a  witness  as  to  the  exist- 
ence of  danger  to  life,  or  of  great  bodily  harm,  or  that  such 
danger    might    have    been    reasonably    apprehended    by    the 

defendant.  » 

State   V.   Rhoads,   29   0.   S.    171. 
Cf.  Stewart  v.   State,   19  Oh.  302. 


419  FACTS  AND   OPINIONS  §336 

(i)  "Whether  a  pugilistic  encounter  is  a  prize-fight  or  a 
Taoxing  exhibition  is  not  a  question  \ipon  which  expert  testi- 
jnony  is  admissible  on  a  trial  of  an  indictment  for  engaging 
in  a  prize-fight.  The  question  must  be  decided  by  the  jury 
iipon  the  evidence  of  what  actually  took  place,  and  not  upon 
the  opinions  of  pugilists  and  others  experienced  in  such 
combats. 

Seville  v.  State,  40  0.  S.   117. 

336.  EXCEPTIONS  TO  RULE. 

(a)  But  testimony  of  a  witness  on  her  examination  in 
chief,  in  a  criminal  ])rosecution  against  her  father  for  incest, 
that  the  latter  had  sexual  intercourse  with  her,  is  not  incom- 
petent as  a  mere  conclusion ;  it  is  simply  permitting  the  wit- 
ness to  testify  to  an  act  by  giving  it  the  ordinary  name,  and 
its  admission  as  evidence  is  not  prejudicial,  especially  when 
the  witness  was,  on  cross-examination,  required  to  relate  in 
full  all  the  facts  and  circumstances. 

Straub  v.  State,  5  C.  C.   (X.S.)   529,  17  C.  D.  50. 

Cf.  Benedict  v.  State,  44  0.  S.  G79,  687. 

(b)  Where  it  is  material  to  show  what  the  accused  was 
doing  at  a  particular  time,  a  person  in  an  adjoining  room  may 
testify  to  the  nature  of  the  sound  which  came  from  the  room 
where  accused  was  at  the  time;  this  testimony  would  not  be 
the  expression  of  an  opinion  or  an  impression,  but  a  description 
of  a  sound. 

State  V.  Lopa,  96  0.  S.  410,  412. 

(c)  And  in  actions  for  libel,  where  the  libel  is  ambigu- 
ous, witnesses  who  know  the  parties  and  circumstances  may 
be  called  to  state  their  opinions  and  judgment  as  to  the  per- 
son intended,  without  disclosing  their  reasons,  leaving  it  lo 
the  defendant  to  inquire  into  the  reasons  which  support  their 
conclusions.  If  this  were  not  the  rule,  slanderers  could  escape 
punishment. 

McLiuijrlilin  V.  r^nssoll,  17  Oh.  47.-..  SI. 

Cf.  Mengert  v.  I'ubV  Co.,  27  C.  D.  2!)!),  l(i  C.  C.   (N.S.)   34,  36. 


CHAPTER  XXIV. 
OPINION  EVIDENCE. 

S37.  Handwriting — General  principles. 

^.38.  Standards  of  handwriting 

339.  Com])arison   with   standards. 

S40.  Acquaintance   with    writing. 

341.  Handwriting   witnesses. 

342.  Physical   condition — ]\Iedical   experts, 

343.  E.\'perts   on  jiermanency   of  injuries. 

344.  Experts  in  malpractice  cases. 

345.  Cross-e.xamiiiation   of  medical  experts. 
34G.  riiysical  condition — Non-experts. 

347    Mental   ca])acity — General   principles. 

348.  Menial  capacity — Non-experts. 

349.  Mental  capacity — Experts. 

350.  ]\Ientality — Weight  of  testimony. 

351.  l)amai;e  to  property. 

352.  Value  of  real  estate. 

353.  Value  of  personalty. 

354.  Services  of  brokers. 

355.  Domestic   services. 

356.  Services  of  attorneys. 

357.  Chemical  experts. 

358.  Steamboat  experts. 

359.  Railway  experts. 

360.  Appliances. 

361.  Rate   of   speed. 
S62.  Animals. 

363.  Negligence. 

337.  HANDWRITING— GENERAL  PRINCIPLES. 

(a)  The  old  rule  was  that  the  witness  called  upon  to 
testify  to  handwriting  must  be  acquainted  with  the  hand- 
writing of  the  individual  whose  signature  was  to  be  proved. 
He  must  have  seen  him  write,  must  have  corresponded  with 
him  or  must  be  acquainted  with  his  handwriting  from  having 
seen  writing  admitted  to  be  his.  In  no  case  could  the  fact 
be  proved  by  comparison  of  hands.  But  in  truth,  all  evi- 
dence   of   handwriting    is    derived   from    comparison,    except 

420 


421  OPINION    EVIDENCE  §338 

where  the  witness  saw  the  signature  made.  The  witness 
judges  of  the  handwriting  by  comparing  it  in  his  mind  with 
what  he  has  previously  seen  or  known  of  the  handwriting  of 
the  individual. 

Hicks  V.  Person.  10  Oli.  42fi,  41. 

Burnliam  v.  Avit,  3  O.  D.  R.  3-27. 

(b)  It  has  long  been  a  well-settled  rule  that  where  the 
genuineness  of  liandwriting  is  involved,  well-attested  stand- 
ards of  the  hand  of  the  person  whose  writing  is  in  question 
may  be  introduced  for  the  purpose  of  comparison  with  that 
which  is  disputed;  and  that  this  comparison  may  bo  made 
not  only  by  persons  who  have  seen  the  party  write  or  have 
acquired  a  knowledge  of  his  hand  by  corresponding  or  trans- 
acting business  Avith  him,  but  also  by  experts. 

Bell   V.   Brewster,   44   0.   S.   600,   fiOG. 

338.  STANDARDS  OF  HANDWRITING. 

(a)  It  is  proper  to  admit  the  testimony  of  experts  as  to 
the  handwriting  of  a  disputed  ])ai)er  l)y  comparing  it  Avith 
other  pajiers  proved  by  direct  evidence  on  the  trial  to  have 
been  Avritten  by  the  person  claimed  to  be  the  writer  of  the 
disputed  paper,  although  such  experts  have  no  previous 
knowledge  of  the  handwriting  of  the  party. 

Calkins  v.  State,  14   0.  S.  222. 

(b)  Where  signatures  of  a  party  arc  already  in  the  case 
and  before  the  court  and  are  admitted  to  be  genuine,  experts 
may  be  called  to  give  their  opinion  whether  another  signa- 
ture is  genuine,  upon  comparing  the  admitted  signatures  with 
the  signature  in  controversy;  or  the  comparison  may  bo  made 
by  the  jury  without  the  aid  of  experts. 

TTifks  V.  Person,  10  Oh.  426,  42. 

(c)  Standards  of  comparison  to  be  used  by  exports  upon 
the  trial  of  an  issue  as  to  the  genuineness  of  a  signature, 
when  not  papers  already  in  tlie  case  or  adniitled  in  he 
genuine,  arc  not  admissible;  for  tliat  pui-p(ts<'.  unless  Ihey  are 
clearly  proved  by  witnesses  wlio  ti'stify  <lir-eetly  to  their  hav- 


§  338  METZLER'S    OHIO    TRIAL    EVIDENCE  422 

ing  been  written  by  the  party  whose  signature  is  in  question. 
[For  the  rule  in  a  ease  where  the  identity  of  a  person  is  in 
issue,  see  339b.] 

Tavey  v.  Pavey,  30  O.  S.  600. 

Bragg  V.   Colwell,    10   O.    S.    407. 

Sperry   v.   Tcbhs,  20    Hull.    ISl,    10   O.   D.   R.   318. 

(d)  Where  a  receipt  was  offered  as  a  standard  of  com- 
parison, and  the  witness  testified  that  the  defendant  gave 
him  a  receipt  that  looked  very  similar  to  the  one  offered,  but 
that  he  could  not  positively  say  that  it  was  the  identical  one 
offered,  it  was  held  that  the  evidence  Avas  too  uncertain  to 
warrant  the  admission  of  the  paper  as  a  standard  of  com- 
parison. But  to  reverse  for  error  i;i  the  admission  of  the 
standard,  the  record  must  show  all  the  evidence  on  which  it 
v^^as  admitted. 

Pavoy   V.   Pavey,   30  O.   S.  (100. 

(e)  Circumstantial    evidence    may    be    sufficient    to    lay    a 

proper   foundation    whereby    one   writing   is   so   authenticated 

as  to  authorize  the  comparison   therewith   of  another  writing 

to  show  identity  or  diversity  of  authorship. 

Liohlang  V.   State,   IS   C.   C.    (X.S.)    179. 
Cf.    Boll   V.    Brewster,   44   O.   S.   GOO. 

(f)  Where  a  witness  has  denied  the  authenticity  of  a 
document  purporting  to  have  been  written  and  signed  by 
him,  and  containing  statements  material  to  the  case,  he  may 
be  required  on  cross-examination  to  write  specimens  of  his 
handwriting  for  the  purpose  of  comparison ;  but  this  rule 
does  not  apply  to  the  direct  examination. 

Sullivan  v.  Starkey,  14  C.  C.   (N.S.)   2S1,  22  C.  D.  485. 

is)  Where  a  number  of  standards  of  handwriting  liave 
been  admitted  in  evidence  for  the  purpose  of  proving  the 
genuineness  of  a  signature,  it  is  an  abuse  of  discretion  on 
the  part  of  the  trial-judge  amounting  to  prejudicial  error  to 
refuse  to  permit  the  jury  to  take  to  their  room  all  the  stand- 
ards so  introduced  as  exhibits. 

Marshall  v.  Thomas,  12   C.  C.    (N.S.)    3.53,  21   C.  D.  363. 


423  OPINION    EVIDENCE  §339 

339.   COMPARISON  WITH  STANDARDS. 

(a)  3Iany  instances  maj'  be  i)rodueed  in  Avhicli  a  com- 
parison of  hands  has  been  resorted  to  in  order  to  prove  the 
identity  of  persons.  Such  evidence  has  been  adduced  for  the 
purpose  of  showing  that  certain  anonymous  letters  written 
in  a  disguised  hand  and  containing  suggestions  calculated  to 
mislead  officers  of  the  law,  had  been  written  by  the  defend- 
ant. Such  evidence  has  been  received  as  competent  for  the 
purpose  of  identifying  the  defendant  in  prosecutions  for 
sending  threatening  letters,  in  arson  and  in  suits  for  libel. 
It  is  also  resorted  to  in  a  large  class  of  cases  where  there  is 
a  question  as  to  whetlier  the  jiarty  sued  is  the  person  who 
signed  the  instrument  on  which  the  suit  is  brought.  Tn  all 
such  cdses,  the  question  is  not  as  to  the  genuineness  of  the 
paper,  but  as  to  the  identity  of  the  party. 

Bell   V.  P.re\vster,  -14  0.   S.    (100,   fiOS 

(b)  A  family  resemblance  between  the  handwriting  upon 
one  paper  and  that  upon  another  tends  to  prove  that  both 
were  written  by  tlie  same  person.  Hence,  where  the  identity 
of  a  person  is  in  issue,  it  is  competent  to  introduce  letters  or 
receipts  claimed  to  be  in  his  handwriting,  for  the  purpose  of 
comparison  with  other  writings,  admitted  or  clearly  proven 
to  have  been  written  by  him  ;  and  such  comparison  may  be 
made,  and  an  opinion  expressed,  by  experts  in  handwriting. 
It  is  not  necessary  to  the  admission  of  tlie  papers  claimed  to 
be  in  the  handwriting  of  the  person  whose  identity  is  in- 
volved that  they  should  be  clearly  proven  to  have  beoii  writ- 
ten by  him.  Any  uncertainty  as  to  tliis  will  affect  the  weight, 
but  not  the  competency,  of  the  evidence. 

Bell   V.    Brewster,   44    0.    S.   GOO. 

(c)  The  use  of  sufficiently  established  marks  on  llic  <  iM-ti- 
fied  list  of  voters  at  a  primary  election  as  a  stand.iid.  i'vom 
comparison  with  which  an  expert  testifies  tliat  otlici-  marks 
made  opposite  other  names  on  said  list  were  made  Ii.\-  tlie 
same  hand,  is  a  legal  method  of  proof. 

Ryan  v.  State,  10  C.  C.    (X.S.)    497,  20  f.  D.  :iO0. 

(d)  On  the  trial  of  a  parly  I'liai-grd  wi'Ji  ullcring  and 
publishing  a  check  as  true  and  genuine,  an  expert  was  called 


I  340  METZLER'S    OHIO    TRIAL    EVIDENCE  424 

for  the  state,  who  had  seen  tlie  alleged  forged  check  several 
months  previously,  and  to  whom  a  genuine  signature  of  the 
accused  was  shown  on  such  trial.  It  was  held  that  the  state 
being  unable  to  produce  such  check,  the  presence  of  such 
check  on  the  trial  was  not  indispensable  to  the  competency 
of  the  witness  to  testify  to  the  fact  that  the  check  and  sig- 
nature were  in  the  same  handwriting.  But  if  the  witness  had 
never  seen  the  accused  write  and  Avas  not  acquainted  with 
his  handwriting,  it  should  appear  from  an  examination  of 
the  expert  that  the  signature  of  the  accused  constituted  a 
sufficient  basis  on  which  the  witness  could  form  an  opinion 
whether  the  check  was  in  the^  handwriting  of  the  accused. 
Koons  V.  State,  3G  O.  S.   105. 

(e)  Where  the  controlling  issue  is  as  to  whether  an 
alleged  will  is  a  forgery  or  genuine,  any  competent  evidence 
tending  to  prove  either  fact  is  admissible;  and  to  this  end  it 
is  competent  to  introduce  the  disj)uted  w'll  in  evidence  for 
comparison  with  other  written  documents  in  evidence  which 
have  been  proved  to  be  genuine,  or  to  introduce  forged  pa- 
pers where  such  papers  will  tend  to  show  the  evil  purpose  of 

the  parties  who  may  have  forged  the  will  in  suit. 
Ourley  V.  Armoiitraut,  G   C.  C.    (N.S.)    150,   17  C  D.   1<)9. 

340.  ACQUAINTANCE  WITH  WRITING. 

(a)  A  non-expert  must  qualify  by  showing  an  acquaint- 
ance Avith  the  handwriting.  A  husband  is  a  competent  wit- 
ness to  prove  that  letters  from  his  wife  are  in  his  wife's  hand- 
writing. A  witness  who  testifies  that  he  has  seen  a  i)arty 
write  and  is  acquainted  with  his  signatui'e,  is  competent  to 
prove  the  genuineness  of  his  signature  to  a  note  although  he 
had  seen  the  party  write  but  once  twelve  years  before,  and 
on  that  occasion  sign  a  receipt,  even  though  another  swears 
that  the  habitual  signature  of  the  party  to  notes  is  alto 
gether  different. 

Iloltz   V.   Dick,   42   0.   S.   23. 

r.ra^lnr.an    v.    Hall,    1    Dis.    .^.-^O,    12    O.    D.    T!.    7S2. 

(b)  Any  person  who  has  been  aecustonu'd  to  see,  receive, 
and  ])ay  out  bank  paper  may  be  called  to  prove  its  character, 


425  OPINION    EVIDENCE  §  341 

tliougli  his  knowledge  is  entirelj-  derived  from  his  observa- 
tion of  the  paper  and  its  currency  in  the  community;  and  he 
may  never  have  seen  the  officers  of  the  banlc  write,  nor  know 
personally  that  the  bank  ever  redeemed  one  of  the  l)i]]s  he 
had  seen  in  circulation.  The  value  of  the  opinion  depends 
on  the  skill  and  experience ;  and  a  cashier  of  a  bank  is  en- 
titled to  no  more  credit  than  any  one  else  of  equal  skill  and 
experience. 

ifay  V.  State,   14  Oh.  461,  467. 
Hess   V.    State,    5    Oli.    5,    6. 
^Nfurpliy   V.  TTa^ennaii,  Wri^zlit  203. 
Cf.   Tlumnu'l    v.   State,    17    0.   S.   628. 

(c)  The  teller  of  a  bank  is  a  competent  witness  to  testify 
concerning  the  handwriting  of  the  president  and  cashier  of 
another  bank;  he  may  testify  as  to  the  genuineness  of  the 
signatures  of  those  officers  to  a  check  or  note  even  though 
they  could  have  been  called  as  witnesses.  And  the  evidence 
of  the  teller  is  not  secondary  evidence. 

Hess   V.    Plate,    ">    0!i.    '>,    7. 

Cf.  State  V.  \\ooilruir,  Tappati  58. 

341.  HANDWRITING  WITNESSES. 

(a)  It  is  improper  to  admit  as  evidence  of  handwriting 
the  mere  opinion  and  belief  of  a  witness,  without  his  first 
stating  his  means  of  acquiring  a  knowledge  of  such  hand- 
Avriting.  And  all  the  facts  upon  which  an  expert  forms  jiis 
opinion  should  be  before  the  court  and  jury,  to  the  end  that 
they  should  determine,  as  far  as  they  may  be  able  to  do  so, 
wheth^  the  opinion  given  is  well  founded,  and  so  that  the 
opposing  counsel  may  have  an  opportunity  to  cross-examine 
as  to  such  facts. 

:^Icrraeken  v.  West,  17  Oli.  16,  23. 
Koons   V.  State,   36  0.  S.   11).'),   19!). 

(b)  The  genuineness  of  a  writing  was  in  controversy  in 
a  cause,  and  an  expert,  called  as  a  witness,  stated  in  connec- 
tion with  his  opinion,  wlii<'li  opinion  was  material  ii|inn  the 
matters  so  in  controvci-sy.  certain  facts  upon  which  the 
opinion  was  founded,  and  the  court  afterward  excluded  from 


§342  METZLER'S   OHIO  TRIAL    EVIDENCE  426 

the  consideration  of  the  jury  such  facts,  but  refused  to  ex- 
clude the  opinion.     It  was  held  that  this  was  error. 
Koons  V.   State,   36  0.   S.    195. 

(c)  An  expert  witness  on  handwriting  should  be  confined 
to  matters  apparent  on  the  face  of  the  writing.  He  can  not 
be  permitted  by  argument  or  inference  to  draw  conclusions 
as  to  matters  not  appearing  on  the  face  of  the  writing;  and 
the  value  of  his  opinion  will  depend  upon  the  clearness  Avith 
which  he  demonstrates  its  correctness. 

Marshall  v.   Tliomas,  12  C.  C.    (?s\S.)    353,  21   C.  T).  .363. 

(d)  Where  some  experts  as  to  genuineness  of  a  signature 
j)ointed  out  the  facts  on  which  their  opinions  were  based  and 
others  did  not,  a  refusal  to  charge  that  the  facts  have  greater 
weight  than  the  oi)inions  is  not  error,  for  this  would  be  tell- 
ing the  jury  what  evidence  was  the  best. 

Breck   v.  State,  4  C.  C.    ](i(h  2   C.   1).   477. 

342.  PHYSICAL  CONDITION— MEDICAL  EXPERTS. 

(a)  Medical  expert  testimony  need  not  be  based  entirely 
upon  personal  experience.  Knowledge  gained  from  reading 
books  of  science,  and  experiments  upon  lower  animals,  and 
scientific  investigation  made  along  similar  lines,  are  a  suffi- 
cient predicate  for  such  expert  testimony.  But  in  a  homicide 
case  it  was  held  prror  to  admit  the  opinion  of  a  physician  that 
the  contents  of  the  vial  was  poison,  when  his  only  knowledge 
thereof  is  that  he  tried  it  on  a  cat  and  it  died. 

Frank  v.  Brewing  Co..  5  O.  L.  B.  5.59,  53  Bull.  37. 

Bose   V.   State,   7    C.    D.   226,    13   C.   C.   342,   .353.  « 

(b)  A  physician  should  state  the  reasons  for  his  opinion, 
and  the  facts  on  which  it  is  based ;  and  if  not  sustained  by 
them,  it  is  entitled  to  little  weight.  Like  the  opinions  of 
neighbors  and  acquaintances,  it  should  be  regarded  as  of 
little  weight  if  not  well  sustained  by  reasons  and  facts  that 
admit  of  no  misconstructions,  and  supported  by  authority  of 
acknowledged  credit. 

Clark   V.   State,    12   Oli.   483,   491. 


427  OPINION    EVIDENCE  §342 

(c)  All  export  can  not  be  allowed  to  give  an  opiuion 
based  upon  statements  made  to  him  by  parties  out  of  court 
and  not  under  oath.  His  opinion,  to  be  admissible,  must  be 
founded  either  on  his  own  personal  knowledge  of  the  facts, 
or  else  upon  a  hypothetical  question  ;  hence  the  opinion  of  a 
physician  called  in  consultation  with  the  attending  physician 
can  not  be  received,  if  based  upon  declarations  as  to  symp- 
toms made  to  him  by  such  physician,  or  by  the  wife  or  nurse 
of  the  patient.  But  a  physician's  testimony  in  regard  to  the 
injuries  or  physical  condition  of  his  patient  is  not  to  be 
excluded  because  part  of  the  examination  of  the  patient  con- 
sisted in  questioning  him. 

Allianeo  v.  Caniplu'll.  0  C.  0.  70)2,  17  C.  C.  505,  604. 

Traction  Co.  v.   Riskoy,  22  C.  C.    (N.S.)    301. 

(d)  A  physician  who  makes  an  examination  of  one  who 
has  received  ph^'sical  injuries,  for  the  sole  purpose  of  en- 
abling him  to  testify  as  an  expert  in  an  action  to  recover 
damages  for  such  injuries,  can  not  testify  to  statements  made 
by  the  party  as  to  his  condition  ;  and  an  opinion  given  by  the 
physician  must  not  be  based  in  any  substantial  degree  on 
statements  of  the  injured  party  as  to  subjective  symptoms. 
In  general,  a  physician  when  testifying  as  an  expert  should 
be  able  to  state  to  the  jury,  before  giving  his  opinion,  that 
such  opinion  is  based  upon  his  examination  of  the  person, 
without  being  affected  in  any  substantial  degree  by  the  re- 
lating to  him  by  the  person  of  subjective  symptoms. 

Railways  v.  Pruis,  7  O.  App.  412,  2S  0.  C.  A.  SC)!!.  20  C.  D.  05. 

Penn.  Co.  v.  Files,  65  O.  S.  403. 

Railway  v.  Hobart,  13   C.  C.    (N.S.)    592,  22  C.  T>.   154. 

(e)  In  a  personal  injury  case,  an  expert  may  be  asked 
hypothetically  whether  the  injuries  could  be  attributed  to  an 
accident  of  the  kind  shown  if  supplemented  by  other  evi- 
dence tending  to  exclude  all  other  causes  or  by  evidence 
showing  a  causal  relation  between  the  accident  and  the 
IT  juries. 

Railway  v.  Galons,   18  C.  C.   (N.S.)    173. 

(f)  A  physician  can  not  be  allowed  to  express  his  opinion 
so  as  to  imply  his  belief  in   the  existence  of  material  facts 


§  343  METZLER'S    OHIO    TRIAL    EVIDENCE  428 

outside  of  his  profession  and  not  within  his  own  knowledge, 
and  Avhieh  are  not  subjects  of  mere  opinion.  Thus,  a  physi- 
cian testifying  to  the  results  of  his  examination  of  a  male 
and  female  can  not  say  that  because  he  knew  the  former 
had  gonorrhea  he  was  therefore  of  opinion  that  the  symp- 
toms of  the  latter  were  of  the  same  disease,  for  it  implies 
carnal  connection  between  the  two. 
Moore  v.  State.   17  0.  S.  521,  520.     • 

(g")  A  medical  expert  can  not  be  asked  whether  a  brake- 
man's  death  was  caused  by  slipping  off  the  train,  or  by  being 
knocked  off  by  contact  with  a  bridge.  And  a  doctor  who 
made  the  post  mortem  examination  and  describes  the  Avounds 
can  not  be  asked  by  the  state  as  to  the  probable  relative  posi- 
tions of  the  parties  when  the  fatal  blow  was  struck.  This  is 
mere  opinion  based  upon  the  facts  proven,  and  the  jury  can 
draw  the  inference  as  well  as  the  witness. 

rtailway   v.   Sliook,   0   C.  D.  0,   Ifi   C.   C.   fifio. 

Perkins  v.  State,  3  C.  D.  21)2,  5.  C.  C.  507. 

343.  EXPERTS  ON  PERMANENCY  OF  INJURIES. 

(a)  In  an  action  to  recover  damages  for  personal  injuries, 

no  recovery  can  be  had  for  future  pain  and  suffering  except 

such  as  the  evidence  shows  to  be  reasonably  certain  to  result 

from  the  injuries  sustained.    Evidence  that  pain  and  suffering 

will    probably   follow    is   competent ;    but    evidence    that    such 

results  may  or  might  follow  is  not  competent. 

Railways  v.  Poland,  7  0.  App.  .S97,  27  0.  C.  A.  105,  2S  C.  D.   108. 
Railways  v.   Pnis,  7  O.  App.  412,  28  O.  C.  A.  369,  20  C.  D.  65. 
I'enn.  Co.  v.  Files,  65  O.  S.  403. 

(b)  The  expert  opinion  of  a  physician  in  an  action  for 
personal  injuries,  as  to  the  probable  result  or  the  permanency 
of  injuries  received,  is  competent  and  need  not  be  confined 
simply  to  showing  that  such  results  followed  more  often  than 
otherwise.  It  is  also  competent  to  show  that  certain  injuries 
are  always  permanent,  or,  if  sometimes  permanent  o'^d  some- 
times not,  that  also  may  be  shown ;  all  are  proper  matters  for 
the  jury.  So  the  testimony  of  a  physician  that  such  an  in- 
jury might  produce  very  disastrous  effects,   is  not  improper. 

Transit   Co.   v.    Stephenson,    12   C.   D.    631. 

Cf.  Railroad  v.  Suhrwiar,  20  C.  C.  558,  10  C.  D.  713. 


429  OPINION    EVIDENCE  §345 

(c)  A  practicing  physician,  familiar  with  the  nature,  ex- 
tent and  condi-tion  of  the  injury  in  question,  in  its  early 
stages  or  history,  being  asked  as  to  the  extent  of  the  injury, 
or  if  he  could  at  the  time  of  trial  determine  as  to  whether 
or  not  the  injury  would  be  permanent,  answers  that  ho  could 
form  an  opinion,  may  give  it  as  his  opinion  that  such  injury 
is  or  is  not  permanent. 

Railway  v.  Bell,  5  C.  C.    (X.S.)    321,   IG  C.  D.  G91. 

344.  EXPERTS  IN  MALPRACTICE  CASES. 

(a)  In  cases  where  malpractice  is  charged,  the  jury  must 

be  largely  guided  by  the  testimony  of  expert  Avitnesses ;  and 

they   can   not   disregard   the   testimony   of   such   Avitnesses   to 

the   same   extent  as   experts  in   other  classes   of   cases.      And 

there   must   be   proof  by   the    testimony   of   experts    of   some 

specitic  act   of  unskillfulness  or  negligence,   from   the  nature 

of  which  the  injury  to  the  patient  may  be  inferred. 

Moelilnian  v.   Ransolioff,   17   X.   P.    (X.S.)    241,  26  0.   1).  541. 
Smith   V.   Brown,    12   0.   D.   522. 

(b)  In  an  action  for  damages  on  account  of  failure  on 
the  part  of  the  defendant  physician  to  exercise  due  skill  and 
care  in  the  treatment  of  the  plaintiff,  it  is  not  error  to  admit 
the  testimony  of  a  physician  of  recognized  professional  stand- 
ing as  to  Avhat  constitutes  the  ordinary  and  proper,  usual 
and  approved  method  of  treatment  of  wounds. 

Stitos  V.  Hier,   11  X.  P.  (X.S.)    IGl,  25  0.  D.  88. 
Hior   V.   Stites,   91   0.   S.   127. 

(c)  Where  the  defense  in  libel  is  that  the  defendants  had 
reason  to  believe  to  be  true  their  charge  against  plaintiff  of 
malpractice  in  an  obstetrical  case  and  did  so  believe,  defend- 
ants may  be  permitted  to  prove  that  they  believed  the  charge, 
true  and  that  the  belief  was  well  grounded  by  showing  by 
expert  testimony  that  in  such  cases  it  was  necessary  to  lake 
certain  precautions  to  avoid  blood-poison. 

Mauk   V.   Brundagc,   68   0.   S.   89,   95. 

345.  CROSS-EXAMINATION  OF  MEDICAL  EXPERTS. 

(a)  A  (juestion  1o  a  niedi<'al  cxpcrl  nii  .toss  cNnniinaf  io-i 
■whether  the  physician  in  charge  of  tk^  case  would  not  kiiou- 


§346  METZLER'S    OHIO    TRIAL    EVIDENCE  430 

more  about  the  condition  of  the  patient  than  a  physician  an- 
swering a  hypothetical  question,  is  properly  excluded ;  as  it 
involves  investigating  the  relative  skill  of  the  witnesses  and 
would  be  mere  opinion. 

Brewing  Co.  v.- Opp,  9  C.  D.  51G,   17  C.  C.  465,  470. 

(b)  In  a  personal  injury  case  against  a  corporation,  it  is 
proper  to  ask  a  physician  testifying  as  an  expert  for  the 
defendant,  if  he  has  not  frequently  acted  as  an  expert  for 
defendant  corporations.  This  does  not  transcend  the  limits 
of  reasonable  cross-examination. 

Railway   v.   Gatens,    18   C.   C.    (N.S.)    173. 

(c)  Though  the  attending  physician's  declarations  to 
others  as  to  the  medicines  he  gave  are  hearsay,  yet  a  consult- 
ing physician  having  testified  that  he  recommended  continu- 
ing the  treatment  of  the  other  physician,  may  be  asked  what 
that  treatment  was,  in  order  to  test  him  as  an  expert. 

Insurance  Co.  v.  LaBoiteaux,  5  0.  D.  R.  242,  4  A.  L.  R.  1. 

346.  PHYSICAL  CONDITION— NON-EXPERTS. 

(a)  A  non-professional  witness  who  has  had  opportuni- 
ties to  observe  a  sick  or  injured  person  may  give  in  evidence 
his  opinion  of  the  condition  of  such  person,  in  respect  to  his 
being  weak  and  helpless  or  not,  and  of  the  degree  of  suffer- 
ing which  ho  endured,  provided  such  opinion  is  founded  on 
his  own  observation  of  the  person  to  whom  his  evidence 
relates,  and  is  limited  to  the  time  that  the  person  was  under 
the  observation  of  the  witness. 

Shelby   V.   Clagett,   40   O.   S.   540. 

Railway   v.  Gaffney,  fi  C.  D.  94,  0  C.  C.  32. 

Transit  Co.  v.  Stephenson.  12  C.  D.  631. 

(b)  The  tones  of  voice,  the  expressions  of  the  face,  and 
the  movements  of  the  limbs,  which  are  the  natural  language 
of  pain,  so  readily  and  clearly  understood  by  those  about  the 
sufferer,  can  not  be  reproduced  so  as  to  impress  the  jury  as 
they  did  the  wntness ;  neither  can  those  appearances  that 
accompany  and  establish  the  fact  of  weakness  and  helpless- 
ness. 

Shelby   V.   Clagett,   46   0.   S.   549,   552. 


4:11  OPINION    EVIDENCE  §  3-47 

(c)  It  is  competent  for  a  non-professional  witness  to 
testify  as  to  the  general  state  of  health  of  a  party,  althougii 
it  would  be  incompetent  for  such  witness  to  go  into  detail 
and  determine  the  technical  disease  with  which  the  party 
■was  afflicted.  lie  may  give  an  opinion  as  to  apparent  suffer- 
ing and  pain  complained  of  by  the  person  while  under  liis 
observation,  but  may  not  state  the  cause  or  character  of  the 
disease  or  of  the  pain. 

:\ronroeville  v.  Weilil,  13  C.  C.  689,  6  C.  D.  188. 
Railway  v.  Beckwitb,   12   C.  D.  559. 

(d)  A  non-expert   witness  may   answer  a   question   as   to 

the   condition   of   a   person   injured,   as   to   the    suffering   and 

pain   and   as   to   strength   and   ability   to   work ;   and   he   may 

testify  that  plaintiff  was  not  able  to  work  at  all.     The  party's 

own  testimony  as  Avell  as  that  of  other  non-expert  witnesses 

is  admissible,   when   the   question   is  whether  the   party  was 

suffering  from  sickness  disabling  him  from  work. 

Railway   v.  Godwin,   12   C.  D.  537. 

:\lyers  v.  Lucas,  16  C.  C.  545,  8  C.  D.  431. 

Moon  V.  Middletown,  7  C.  D.  579,  14  C.  C.  498,  502. 

(e)  While  a  daughter  of  plaintiff  may  testify  that  since 
the  accident  her  mother  had  done  no  ironing,  washing  or 
sweeping,  and  may  testify  as  to  her  mother's  apparent  phys- 
ical condition,  yet  it  is  error  to  alloAV  her  to  give  her  opinion 
as  to  why  the  mother  did  not  work,  as  that  she  was  too 
nervous. 

Traction  Co.  v.  Hanson,  16  C.  C.    (N.S.)    296. 

347.   MENTAL  CAPACITY-GENERAL  PRINCIPLES. 

(a)  In  a  proceeding  to  contest  a  will,  it  is  not  competent 
for  a  witness  to  give  an  opinion  as  to  whether  the  testator 
had  capacity  to  make  a  will.  But  the  physical  and  mental 
conditions  from  which  it  may  be  determined  l)y  the  court 
and  jury  whether  he  had  such  capacity  are  facts  which  may 
be  shown  by  evidence  of  manifestations  of  such  conditions. 

Bahl  V.  Byal,  00  O.  S.  129. 

(b)  A  witness  can  not  be  asked  his  opinion  as  to  the 
capacity   of  a   testator  to  make  a   will.   l)ecause  su<'h    inquiry 


§  348  METZLER'S    OHIO    TRIAL    EVIDENCE  432 

involves  a  question  of  law  and  fact;  and  to  the  extent  that 
capacity  is  involved  in  the  issue  it  is  the  very  question  to  be 
determined  by  the  jury.  It  also  assumes  that  the  witness 
knows  the  degree  of  capacity  which  the  law  requires  for  the 
performance  of  the  act  of  executing  a  will. 

Run  van    v.    Price,    M    O.   S.    1. 

Moore   v.   Caldwell,   0   C.   (.    (X.R.)    4S4.    17   C.   D.   440. 
Sliuey   V.   Fink,  5  0.   App.   351),  26  C.   C.    (N.S  )    106. 
Cf.  Walbli   V.    Walsh,   IS  C.  C.    (N.S.i   ill. 

(c)  Asking  the  subscribing  witness  to  state  whether  or 
not  the  testator  had  capacity  to  form  a  purpose  and  intention 
of  disposing  of  his  i)roperty  by  will,  is  not  contrary  to  the 
rule  of  Riinyan  v.  Price,  for  it  does  not  invade  the  province 
of  the  jury  to  ask  as  to  the  condition  of  his  mind. 

Diinlap   V.   Dunlap,   SO  0.  S.  2R. 

(d)  It  is  competent  for  the  physician  of  a  testator  to  ex- 
l)ress  an  opinion  as  to  tiie  actual  condition  "of  the  patient's 
mind,  founded  on  his  study  and  observation  of  the  testator 
while  in  professional  attendance  on  him  at  tiie  time  and  prior 
to  the  date  of  the  Avill,  and  whether  he  was  cai)able  of  com- 
prehending large  and  complicated  business  propositions  or 
the  distribution  of  a  large  estate. 

Balil  V.  Byal,  90  O.  S.  l-2n. 

Cf.  P.roekrneier  v.  Buck,  12  Bull.  21. '5,  0  ().  0.   R.  :}5:5. 

348.  MENTAL  CAPACITY— NON-EXPERTS. 

(a)  It  is  the  established  law  of  Ohio  that  in  an  action  in 
contest  of  the  validity  of  a  will,  a  lay  witness,  although  not 
a  subscribing  witness,  who  has  theretofore  given  testimony 
upon  which  an  opinion  can  reasonably  be  based,  may  give  his 
opinion  as  to  the  soundness  or  unsoundness  of  the  mind  of  the 
testator. 

Kiemos  v.  Niemos,  fl7  O.  S.  145. 

(b)  In  such  an  action,  it  is  competent  for  a  lay  witness, 
so  qualified,  to  give  his  opinion  as  to  the  capacity  of  the 
testator  to  understand  im[)ortant  business  matters,  although 
the  absence  of  such  capacity  need  not  necessarily  disqualify 
a  testator  from   making  a   valid   disposition   of  his   property. 


433  OPINION    EVIDENCE  §348 

Such  testimony  is  cDiupeteiit  as  ri'tUH-titi<j:  on  the  testator's 
])ower  of  tliou^^lit  and  comprehension  and  the  general  strength 
of  his  mental  faculties. 

Xiemcs  v.  Xiemes,  07  0.  S.  145. 

(c)  As  long  as  tlu'  rule  prevails  permitting  lay  witnesses 
to  give  opinion  evidence  as  to  a  testator's  sanity  or  insanity, 
wide  latitude  may  safely  be  i)ermitted  as  to  both  the  form  and 
substaiu'e  of  questions  which  have  for  their  object  the  i)resen- 
tation  to  the  jury  of  a  rei)lica  of  the  testator's  mind,  with  all 
its  strength  or  weakness,  and  its  powers  or  limitations. 

Niemes  v.  Nicmes,  07  0.  S.  H.'i,  159. 

(d)  The  opinions  of  non-expert  witnesses  as  to  the  sanity 
of  a  testator  are  incompetent,  where  such  witnesses  do  not 
qualify  by  giving  the  facts  coming  under  their  observation 
upon  which  their  opinions  are  based.  Hypothetical  questions 
as  to  a  testator's  mental  condition  can  not  be  asked  a  wit- 
ness who  is  not  an  expert,  even  on  cross-examination. 

r!,l.    of    Missions    v.    Bovan,    2    0.    Ai)p.    IS'J,    17    C.    C.    (X.S.)    275,   24 
C.    1).   :51S. 

I'voush  V.  Wcnscl,  S  V.  D.  141,   15  C.  C.   133. 
(Jregir  V.  Moore,  14  C    C.   (N  S.)   570,  23  f.  D    534. 
Ilatluiuav    V.   Farley,  22   C.   C.    (N.S.)    402. 

(e)  Attesting  witnesses  may  give  their  opinion  as  to  san- 
ity witliout  giving  the  facts  on  which  it  is  founded,  they 
being  an  exception  in  that  respect.  If  such  opinion  is  ex- 
cluded, but  is  subsequently  elicited,  the  error  is  cured. 

Snydor    v.    Hcain.    TddinL's.    107. 

?.,1.  of  Missions  V.  ticvan,  2  O.  App.  1S2,  24  C.  1).  318,  17  C.  C.   (N.S) 

275.  2'-'l. 

(  f,   'rniiiiaii   V.  Lcirc,   1  I  O    S.   114. 

(f)  The  opinion  of  a  witness  as  to  the  sanity  of  a  testator 
mu.st  rehite  to  tlu»  time  of  his  examination;  and  ui)on  the 
direct  examination  his  ()|)inion  at  a  time  anterior  can  not  be 
called  for.  As  well  might  a  party  claim  1(»  prove  tlir  (.ecur- 
rence  of  facts' by  interrogating  tlie  witness  as  to  his  under- 
standing or  recollection,  in  regard  to  tliem  years  before,  in- 
stead  of  at  the  time  of  his  examiiiat  ion.  The  (|nesti(.ns  should 
be  restricted   to   the   present    opinion    of   the   witness   as   to   the 


§  349  METZLER'S    OHIO    TRIAL    EVIDENCE  434 

testator's  mental   condition   at   the   time  the   witness  liad  him 
under  observation. 

Run  van    v.    Prico,    ].">    ().    S.    ],    14. 

Striek  v.  Kiss,  o  O.  Aj)]).  2!)2,  20  C.  C.    (X.S.)    4r)fi,  27  C.  1).  554. 

Kogers  v.  Monroe,  20  C.  C.  (X.S.)   l!i3. 

Cf.   Railroad  v.  Marsli,  03  O.   S.  236. 

Cf.  Dunlap  v.  Dunlap,  80  0.  S.  28,  32. 

(g)  Where  a  witness  is  called  by  the  defendant  in  a  will 
contest  to  give  his  opinion  in  chief  as  to  the  mental  capacity 
of  the  testator,  no  right  exists  in  favor  of  the  plaintiff  to 
cross-examine  him  upon  the  facts  and  grounds  upon  which 
his  opinion  is  based,  until  after  the  conclusion  of  the  exami- 
nation in  chief. 

Moore    V.   Caldwell.   0    C.    C.    (N.S.)    484.    17    C.    ]).    440. 

(h)  Where  Avitnesses  have  detailed  in  their  testimony  the 
conversations  they  had  with  a  party  when  it  is  alleged  he 
executed  a  release,  and  what  he  did  and  how  he  acted,  they 
should  be  permitted  to  give  their  opinions  as  to  his  mental 
condition  on  the  occasion  when  it  is  said  he  signed  the  release. 
Jones  V.  Pickle,  7  O.  App.  33,  27  0.  C.  A.  413,  29  C.  D.  364. 

349.  MENTAL  CAPACITY— EXPERTS. 

(a)  A  hypothetical  question  propounded  to  an  expert  by 
the  contestant  in  an  action  to  set  aside  a  will,  which  indicates 
what  contestant  claims  to  be  the  physical  and  mental  condi- 
tion of  testator  at  the  time  of  making  of  his  alleged  will,  and 
that  as  a  consequence  of  such  condition  he  was  of  unsound 
mind,  which  indicia  of  lack  of  testamentary  capacity  are  con- 
troverted in  the  case,  is  competent  Avhere  there  is  evidence 
tending  to  establish  the  facts  assumed  in  the  question. 

West   V.  Knoppenberger,   4   C.   C.    (N.S.)    305,    10   C.    D.    108. 

(b)  Where  the  defense  of  insanity  is  relied  upon  in  the 
trial  of  an  indictment  for  murder  in  the  first  degree,  the 
opinion  of  a  medical  exj)ert  upon  a  hypothetical  case  is  ir- 
relevant, if  the  case  assumes  material  facts  which  no  evidence 
tends  to  establish,  as  that  an  ugly  feeling  existed,  and  that 
the  accused  wished  to  have  control  of  deceased's  property. 

Sliarkcv  v.  State.   4    C.   C.   101.   2   C.    I).   443. 


435  OPINION    EVIDENCE  §350 

(c)  On  a  trial  for  murder,  Avliere  insanity  was  set  up  as 
a  defense,  a  i)liysician  having  stated,  on  examination  in  chief, 
that,  in  his  opinion,  the  prisoner  Avas  insane,  in  order  to  test 
the  accuracy  and  value  of  that  opinion,  he  may  be  asked,  on 
cross-examination,  Avhether,  in  his  opinion,  the  accused  knew 
riglit  from  wrong— that  it  would  be  wrong  for  him  to  com- 
mit murder,  rape,  arson,  or  burglary. 
Clark   V.   State,   12   Oh.  483. 

350.  MENTALITY— WEIGHT  OF  TESTIMONY. 

(a)  The  testimony  of  non-expert  witnesses  acquainted 
with  the  testator,  giving  opinions  as  to  the  mental  capacity 
of  a  testator  to  make  a  will  in  connection  with  the  facts  upon 
which  their  opinions  are  based,  is  competent  notwithstanding 
their  testimony  discloses  little  opportunity  to  observe  or  little 
knowledge  of  the  facts,  and  their  inability  to  state  facts 
shedding  much  light  on  testator's  condition.  T'iid(>r  such 
circumstances  the  question  is  as  to  the  weight  rather  than 
the  competency  of  the  testimony. 

Kettemaim    v.    :M('tzgor,    3    C.    C.     (X.S.)    224,    13    C.    D.    (11. 

Clark    V.    State,    12    OIi.    483. 

See  Clomien  v,  Weidemer,  27  O.  C.  A.   177,  2!)  C.  1).  1. 

(b)  A  delusion  on  the  part  of  a  testator  does  not  con- 
stitute mental  incapacity,  unless  it  is  an  insane  delusion ;  and 
in  determining  whether  a  testator  was  suffering  from  such  a 
delusion  at  the  time  he  made  his  will,  the  testimony  offered 
on  the  subject  should  be  considered  by  the  jury,  that  of  ex- 
I)erts  not  being  allowed  to  outweigh  absolutely  that  of  lay- 
men who  had  known  the  testator  for  years,  and  had  business 
transactions  with  him,  and  frequently  met  and  conversed 
with  him. 

Moore  v.  Caldwoll.  6  C.  C.   (N.S.)   484,   17  C.  O.  44!). 
Clark  V.  State,  12  Oh.  483,  490. 

(c)  It  is  not  error  to  charge  the  jury  to  receive  expert 
evidence  of  insanity,  in  a  homicide  case,  with  caution,  where 
the  charge  ai)pIios  to  l)otli  sides,  ;iii(l  the  cli.ii-jn'tcr  of  the 
evidence  furnished  good  reasons  for  the  caution. 

State  V.  Miller,  7   C.  I).  .^).-.2,   13   C   C  (i7. 


§  351  METZLER'S    OHIO   TRIAL    EVIDENCE  436 

351.  DAMAGE  TO  PROPERTY. 

(a)  In  an  action  for  damages  to  real  property,  testimony 
is  admissible  to  show  the  exact  character  of  the  injury  suf- 
fered. If  the  injury  is  permanent  or  irreparable,  the  measure 
of  damages  is  the  difference  in  values  of  the  property  before 
and  after  the  injury.  If  the  injury  is  susceptible  of  repair 
for  an  amount  less  than  its  loss  in  value,  the  measure  of 
damages  is  the  reasonable   cost  of  repair  plus   damages  for 

loss  of  use. 

Cincinnati   v.  Wright,  2  N.  P.    (N.S.)    53,   14  0.  D.   600. 

(b)  A  question  asking  what  injury  a  ditch  would  do  to 
certain  land,  to  which  the  witness  answered  "None,"  is  not 
improper  as  calling  for  an  opinion  as  to  amount,  but  rather 
as  asking  for  a  description  of  the  manner  or  a  statement 
of  the  nature  of  the  injury  to  the  land. 

Miller  V.  Weber,   1   C.   C.   130,   1    C.   D.   77. 

(c)  In  an  action  to  recover  damages  to  abutting  property 

by  building  a  railroad  in  a   street,  witnesses  should  not  be 

permitted  to  testify  how  much  less  was  received  as  rent  than 

before   the   track  was  laid   in   front   of   it,   nor   to    give  their 

opinion  as  to  the  "difference  in  value  of  the  property  with 

the  track  in  the  street  and  if  it  was  some  other  place." 

Eaihvay  v.  Gardner.  45  O.  S.  SOn. 
Cf.   Powers  v.   Railway,  33  0.   S.  42!). 

(d)  The  opinion  of  a  witness  as  to  the  amount  of  dam- 
ages which  a  land-owner  will  sustain  by  the  appropriation  of 
a  portion  of  his  land  for  the  purpose  of  constructing  a  rail- 
road over  it,  is  not  admissible  as  evidence.  But  a  witness 
may  be  allowed  to  give  his  opinion  as  to  the  value  of  the 
land  affected,  or  the  value  of  the  land  before  and  after. 

Railroad   v.   Ball,   5   0.   S.   56S. 
Railroad    v.    Campbell,    4    O.    S.    5S3. 
Railroad  v.  Gardner,  4.5  O.  S.  309. 
Powers  V.   Railway,   33   0.   S.  429. 

(e)  A  person  who  is  present  during  the  trial  of  a  case 
r'-d  has  heard  witnesses  describe  the  manner  in  which  a 
water-power  mill  was  injured  by  the  erection  of  a  dam  across 


437  OPINION    EVIDENCE  §352 

a    stream    of   water   below    it,    is    not    competent    to    give    liis 
ojiinion  of  tlie  damages  sustained  by  the  party  injured. 
Shepherd  v.  Willis,   10  Oh.   142. 

(f)  The  rule  in  regard  to  personalty  is  the  same.  In  an 
action  on  an  attachment  bond,  it  is  error  to  admit  in  evidence 
the  opinions  of  witnesses  as  to  the  amount  of  h)ss  or  damage 
sustained  by  dei)rociation  in  the  market  value  of  a  stock  of 
goods,  caused  by  the  seizure  and  detention  thereof  under  the 
order  of  attachment. 

Alexander  v.  Jacoby,  23   0.  S.  3.")S. 

352.  VALUE  OF  REAL  ESTATE. 

(a)  Where  a  witness  is  an  expert,  not  only  as  to  the 
value  of  the  land,  but  as  to  the  purposes  for  which  it  may 
be  used,  he  may  be  questioned  as  to  both ;  and  he  may  give 
in  chief  intrinsic  characteristics  of  the  property  that  make  it 
of  special  value.  The  refusal  to  allow  such  testimony  is 
prejudicial,  and  is  not  cured  by  a  cross-examination  render- 
ing the  objection  to  his  testimony  no  longer  available,  or  by 
allowing  other  witnesses  to  testify  to  the  same  facts. 

Foote  V.   Railway,  21   C.   C.   310,   11    C   D.   fiS.^. 

(b)  In  an  action  for  the  loss  of  a  mill  destroyed  by  fire, 
a  witness  who  was  well  aeqainted  with  the  property  and 
knew  its  cost,  although  Tiot  an  expert,  was  properly  permit- 
ted to  testify  as  to  its  value. 

Insurance  Co.  v.  Bowersox.  P.  f.  C.  1.  3  C.  D.  321. 
Denison  University  v.  Manninj:.   Iddinf^s.  71 

(c)  Where  valuable  fruit-trees  stand  on  hind  appropri- 
ated, their  value  may  be  shown  l)y  proving  the  value  of  the 
land  with  and  without  the  trees  thereon.  And  to  prove  the 
value  of  a  well  thereon,  the  cost  of  the  same  may  l)e  shown. 
As  there  is  no  market  value  for  such  improvements,  it  is 
proper  to  ascertain  their  value  separate  fi-oni    the  hiiul. 

Foote   V.   Railway,   21    C.   C.   310.   11    C.    I).   fiS-l. 

(d)  The  amount  paid  by  the  owner  of  real  jjroperty  does 
not  fix  its  jiresent  value,  nor  is  its  present  vnlue  sliown  by 
evidence   as   to    its   value   one    vear   Ix'fore :   l)nt    both    have    a 


R  353  METZLER'S    OHIO    TRIAL    EVIDENCE  438 

bearing  on  its  present  value,  and  are  admissible  in  evidence. 
The  proper  test  of  the  value  is  the  general  selling  price  in 
the  neighborhood. 

Railroad  v.  Gorsucb,  S  C.  C  (K.S.)  297,  18  C.  T>.  46S. 

(e)  In  fixing  the  market  value  of  property  and  its  en- 
hancement in  value  from  street  improvement,  greater  weight 
attaches  to  the  opinions  of  experts  who  base  their  judgments 
upon  actual  sales,  than  to  the  opinions  of  residents  who  have 
purchased  property  in  the  neighborhood  for  permanent  homes 
and  give  little  consideration  to  its  market  value  as  it  may  be 
affected  from  time  to  time  by  various  causes. 

Waldsclimidt  V.   Bowland,   6   C.   C.    (N.S.)    99,   17   C.   D.   782. 

(f)  On  cross-examination  of  a  witness  as  to  value  of  real 
property,  sales  in  the  neighborhood  may  be  inquired  about 
to  test  knowledge;  but  it  is  error  to  incorporate  into  the 
questions  an  assumption  that  such  sales  at  prices  named  have 
occurred.  The  prejudice  may  be  avoided  if  the  witness  knows 
of  such  sales  and  testifies  thereto. 

Morison  v.  Cleveland,   17  C.  C.    (N.S.)    427. 

(g-)  Questions  calling  for  mental  processes  of  reasoning 
of  a  witness  in  an  action  to  determine  the  proper  tax  of 
property,  for  the  purpose  of  ascertaining  how  he  arrived  at 
a  certain  valuation  are  incompetent.  But  he  may  be  exam- 
ined  as   to   the   value    of  the   different   parts  making   up   the 

tract. 

Doshler  v.  Simms.  2  X.  P.    (N.S.)    385,   14  0.  D.  532. 

353.  VALUE  OF  PERSONALTY. 

(a)  In  an  action  on  a  fire  insurance  policy  covering 
household  goods,  the  owner  and  his  wife  may  give  their 
opinions  as  to  the  value  of  their  property;  and  evidence  of 
its  cost  is  some  evidence  of  its  actual  value.  An  owner  may 
always  give  his  opinion  of  the  value  of  his  own  property. 

Insurance  Co.  v.  Burke,  19  C.  C.    (N.S.)    289. 

(b)  A  witness  who  has  been  a  farmer  for  ten  years  and 
has  made  one  purchase  of  grooving  wheat  in  that  time,  may 
testify  as  to  the  value  of  growing  wheat.    It  might  not  be  a 


439  OPINION  Evidence  §354 

very  great  aid  to  the  jui-y  ;  but  ho  had  some  knowledge  not 
possessed  by  men  wlio  knew  nothing  of  farming  and  who  had 
never  made  such  a  purchase. 

Baldwin  v.  Curth,  9  C.  D.  594.  17  C.  C.  174.  S. 

(c)  It  is  not  necessary  that  a  dealer  in  coal  for  twelve 
years,  who  has  been  called  to  testify  as  to  the  price  of  coal 
during  a  specified  period  while  he  was  in  the  business,  should 
further  qualify  as  an  expert. 

Coal  Mining  Co.  v.  Jones  Co.,   15  C.  C.    (N.S.)    300. 

(d)  Where  defendant  in  the  autumn  employed  plaintiffs 
to  complete  houses  begun  under  a  rescinded  contract  made  in 
the  spring,  promising  to  pay  the  additional  cost  caused  by 
rise  of  jnices,  it  is  not  error  to  allow  plaintiffs  to  ask  a  wit- 
ness generally  the  difference  in  prices  between  spring  and 
fall,  Avithout  asking  as  to  the  particular  year,  preparatory  to 
asking  as  to  the  year  in  question.  The  witness  may  also  be 
asked  the  difference  by  way  of  percentum  for  that  year,  in- 
stead of  the  difference  in  dollars  and  cents. 

Kugler  V.  Wiseman,  20  Oh.  361. 

354.  SERVICES  OF  BROKERS. 

(a)  On  the  question  of  the  value  of  services  in  the  sale 
of  corporate  bonds,  brokers  and  others  having  superior 
knowledge  of  such  business  are  competent  witnesses.  And 
they  may  be  cross-examined  as  to  the  value  of  such  services 
under  a  special  contract  for  a  sale  of  a  portion  of  the  bonds ; 
and  their  inability  to  determine  would  go  to  the  weight  and 
not  to  the  competency  of  their  evidence. 

Railroad  v.  Everett,  10  C.  D.  493,   19  C.  C.  205. 

(b)  Where  a  person  seeks  as  compensation  not  customary 
commissions,  but  the  reasonable  value,  cross-examination  of 
experts  should  not  be  restricted  to  Avhal  was  usually  paid  : 
but  the  difficulty  of  the  task,  the  time  and  .skill  re(|uired,  and 
the  value  of  the  results  achieved  may  all  be  considered. 

Railway  v.  Everett,  10  C.  D.  493,  19  C.  C.  20.-5. 

(c)  Tn  a  suit  for  the  recovery  of  the  value  of  services 
in   effecting  a  lease,  the  oijinion   of  the  jinrty   performing  the 


K  355  METZLER-S    OHIO    TRIAL    EVIDENCE  440 

services   is    competrii-t.      And   independent    of    opinions    as   to 
value,   the   testimony   of   witnesses   giving   the   facts  touching 
the   character   and   extent   of  tlie   services   and   the   time   con- 
sumed in  their  performance  is   evidence  of  tlieir  value. 
Jewelry  Co.  v.  Hazen,  6  C.  C.   (N.S.)   606,  17  C  D.  070. 

(d)  Where  services  in  acquiring  real  estate  are  to  be 
J^endered  at  such  price  as  on  completion  the  employer  in  his 
opinion  shall  consider  reasonable,  and  the  employer  does  not 
exercise  this  right  at  completion  nor  on  request  thereafter, 
but  waits  until  he  is  sued  and  is  on  the  witness-stand,  it  is 
proper  to  rule  out  his  opinion  and  alloV  the  reasonable  value. 

Railway  v.  Lott,  6  C.  D.  447,  10  C.  C.  249. 


355.  DOMESTIC  SERVICES. 

(a)  The  value  of  services  as  a  domestic  and  nurse  may 
be  asked  of  a  married  woman  who,  as  a  housekeeper  and 
neighbor,  knows  the  character  of  the  work  and  answers  from 
experience,  but  she  should  first  be  qualified  by  asking  her  if 
she  knows  what  is  usually  paid  for  such  services.  The  state- 
ment of  a  witness  as  to  what  was  charged  by  another  for 
similar  services  should  be  excluded. 

Allen  V.  Lowe,  19  C.  C.  353,  10  C.  D.  353. 

(b)  When  upon  the  trial  of  the  general  issue,  in  an  ac- 
tion upon  a  quantum  meruit  for  services  of  a  domestic  char- 
acter, the  plaintiff  offers  evidence  showing  the  facts  from 
which  a  promise  to  pay  may  properly  be  inferred,  and  also 
showing  the  nature  and  extent  of  the  services  rendered,  the 
case  should  be  submitted  to  the  jury,  although  no  witness 
expresses  an  opinion  as  to  the  value  of  the  services.  Even 
if  opinion  evidence  on  the  subject  should  be  adduced,  the 
jury  would  not  be  bound  by  it. 

Hossler  v.  Trump,  62  0.  S.  130. 

Mclntire  v.  Garlick,  4  C.  D.  -l-2!).  S  C.  C.  416. 

Contra,  Johnson  v.  Spiegel,  4   C.   C.  388,  2  C.  D.  012. 

(c)  Upon  the  trial  of  an  action  to  recover  damages  for 
wrongful  death,  it  is  error  to  permit  the  plaintiff,  the  parent 
of  the   deceased,  to   give   his   opinion   as   to   the   value   of  his 


441  OPINION    EVIDENCE  §356 

child's   services  to  him   and  his   family  at   the  time   of  her 
death    and   thereafter,   that   being   for   the    determination    of 
the  jury  upon  facts  given  in  evidence. 
Traction  Co.  v.  Stephens,  75  0.  S.  171. 

356.  SERVICES  OF  ATTORNEYS. 

(a)  Upon  the  trial  of  an  issue  of  fact,  where  the  value 
of  ])rofessional  services  claimed  to  have  been  rendered  for 
the  defendant  by  an  attorney  is  in  controversy,  it  is  com- 
petent for  other  attorneys,  called  as  witnesses,  to  give  their 
opinion  as  to  the  value  of  such  services;  and  such  opinion 
may  be  given  in  reply  to  a  question  stating  the  amount  and 
character  of  such  services  hypothetically. 

Williams   v.   Brown.  28   0.   S.   547. 

(b)  But  if  such  hypothetical  statement  materially  exag- 
gerates the  services  rendered,  and  is  unwarranted  by  any 
testimony  in  the  case,  an  opinion  as  to  the  value  of  such  sup- 
posed services  is  at  least  irrelevant,  and  an  objection  to  it 
should  be  sustained. 

Williams  v.  Brown,  28  0.  S.  547. 

SafBn  V.  Thomas,  8   C.  C.  253,  4  C.  D.  438. 

(c)  Where  it  is  not  shown  that  such  Avitness  has  any  per- 
sonal knowledge  of  the  case  in  which  the  services  are  claimed 
to  have  been  rendered,  or  of  the  amount  and  character  of 
such  services,  the  party  calling  him  as  a  witness  has  no  riirlit 
to  ask  him,  "From  what  you  know  of  this  case,  what  do  you 
think  would  be  a  fair  amount  for  \ho  attorney's  service?" 
And  where  such  question  is  objected  to  by  the  opposite  party, 
it  is  error  to  allow  it  to  be  answered  by  an  expression  of 
the  opinion  of  the  witness. 

Williams  v.  Brown,  28  0.  S.  547. 

(d)  A  verdict  fixing  the  compensation  to  be  paid  for  the 
services  of  an  attorney  will  not  be  set  aside  because  of  the 
great  length  of  the  hypotlietical  question  submitted  to  expert 
witnesses  called  as  to  value,  whore  tlie  question  was  made 
no  longer  than  was  necessary  to  iiicorporatt'  ii1l  tlic  facts 
relating  to  tlie  employment  and  the  amount  ami  character 
of  the  work  performed. 

Traction  Co.  v.  Burch,  4  O.  L.  B.  f.fiO,  17  O.  T^.  739. 


§  357  METZLER'S   OHIO   TRIAL    EVIDENCE  442 

357.  CHEMICAL  EXPERTS. 

(a)  On  the  trial  of  one  charged  with  selling  oleomar- 
garine containing  coloring  matter,  it  is  not  error  to  permit  a 
chemist  experienced  in  the  analysis  of  food  products  to 
testify  that  the  article  sold  resembles,  is  a  substitute  for  or 
imitation  of  butter. 

State  V.  Ehinger,  67  0.  S.  51. 

(b)  In  the  trial  of  an  action  for  the  negligent  discharge 
of  a  nitro-glycerine  torpedo  in  an  oil-well,  it  is  competent  for 
a  witness  who,  by  experience  in  such  work,  has  made  him- 
self familiar  with  the  character  and  explosive  qualities  of 
that  article,  and  the  effect  of  the  explosion  of  it  in  forcing 
out  gas,  and  the  dangers  incident  to  the  contact  of  such  gas 
with  the  atmosphere  and  with  fire,  to  testify  as  an  expert  in 
regard  to  the  proper  time  to  explode  such  torpedo  in  a  M^ell. 

Torpedo   Co.,   v.    Fishburn,    61    0.    S.   608. 

(c)  In  an  action  for  nuisance,  the  presence  or  absence  of 
gases  may  be  shown  by  the  tests  of  chemical  experts.  In  an 
action  for  the  price  of  manufactured  goods  sold  on  warranty, 
evidence  of  laboratory  tests  of  the  goods  delivered  is  ad- 
missible. 

^IcClun^  V.  Coke  Co.,  31  Bull.  9,  1  0.  D.  247. 
Cogswell   Co.  V.   Sibley,    17   C.   C.    (N.S.)    3. 

(d)  In  a  prosecution  for  the  pollution  of  a  stream,  chemi- 
cal analysis  of  the  water  after  the  date  laid  in  the  informa- 
tion, with  proof  that  the  sewage  conditions  were  the  same, 
is  the  best  chemical  evidence;  and  its  exclusion  is  error, 
which  is  not  cured  by  admitting  an  analysis  by  the  same 
witness  prior  to  the  information. 

Burch  V.  State,  5  0.  D.  137,  7  X.  P.  379. 

(e)  An  analysis  of  a  portion  of  the  impure  food  on  which 
a  prosecution  is  based  may  be  ordered  by  the  court.  The 
court  should  select  the  expert,  and  the  analysis  should  be  in 
the  presence  of  both  parties.  It  should  be  refused  the  de- 
fendant if  the  analysis  will  destroy  all  of  the  substance  for 
evidentiary  purposes,  or  if  his  motive  is  merely  to  find  out 
the  state's  case,  or  is  out  of  curiosity,  or  is  vexatious. 

Breckenridf^e   v.   State,   4   O.   D.    3P0.    3   N".   P.   313. 


^^^  OPINION    EVIDENCE  §359 

(f)  After   a   homicide   by  stabbing,    the   accused   Avas   ar- 
rested  and   a   knife   was   found   in   his   pocket.     A   substance 
scraped  from  the  blade  of  the  knife  was  chcmicallv  analyzed 
by  experts,  who  testified  that  it  was  blood. 
Fabian  v.  State,  97  0.  S.   184,  188. 

358.  STEAMBOAT  EXPERTS. 

(a)  One  conversant  with  steamboats,  as  master,  engineer 
and  builder,  having  examined  a  boat  injured  by  eolHsion. 
may  state,  in  connection  with  the  facts,  his  opinion  as  to  the 
direction  from  which  the  boat  was  struck  at  the  moment  of 
contact.  Any  such  person  having  examined  the  injured  boat 
may  describe  her  condition,  and  say  whether,  in  his  opinion, 
she  is  Avorth  repairing. 

.Clipper    (Steamboat)    v.  Logan,   18  Oh.  373. 

(b)  An  expert  may  give  his  opinion  that  a  steamboat 
navigated  with  due  care  might  suddenly  spring  a  leak  and 
sink  without  apparent  or  known  cause ;  and  that  boats  carry- 
ing cotton  usually  leak  and  require  pumping,  as  tending  to 
show  how  the  words  "tight  and  sound"  in  a  policy  were 
understood  by  the  parties. 

Insurance   Co.   v.   ToLin,   32   0.   S.   77. 

(c)  When  the  actual  effect  of  a  known  agency  is  un- 
known, and  the  oi)inion  of  one  familiar,  by  actual  observa- 
tion, Avith  the  matter  under  consideration,  is  the  best  testi- 
mony the  subject-matter  to  be  investigated  affords,  the  opin- 
ion of  such  person  may  be  received  as  testimony;  hence,  it 
is  competent  to  receive  as  testimony  the  opinion  of  skilled 
river  navigators,  familiar  with  the  subject,  as  to  the  effect 
the  wave-swells  made  by  a  larger  steamboat  would  have  upon 
a   smaller  and  heavily  laden  one,   wliile  passing. 

Insurance  Co.   v.  Tobin,   32   0.   S.   78. 

359.   RAILWAY  EXPERTS. 

(a)  The  opinions  of  men  experienced  in  tlie  running  and 
movement  of  trains  \\li()  have  knowledge  of  the  duties  of 
those  employed  in  such  work,  may  be  </\\r]\  to  I  lie  jury  when 


§360  METZLER'S    OHIO   TRIAL    EVIDENCE  444 

the   case   involves   such   duties.     But  having   clone   this,   such 

witnesses  can  not  be  asked  other  questions  which  invade  the 

province  of  the  jury  by  calling  for  opinions  as  to  the  merits 

of  the  controversy. 

Railway  v.  Mulcaliy,  0   C.  D.   82,   IG   C.  C.  204. 
Eailroad  v.  Bailey,  11  O.  S.  3.33,  335. 

(b)  But  railroad  conductors  and  engineeers  are  not  com- 
petent as  experts  to  give  their  opinions  as  to  whether  a  train 
striking  a  person  could  have  left  his  body  in  the  condition 
and  position  in  which  it  was  found. 

Aidt  V.  State,  2   C.  C.  18,   1   C.  D.  337. 

(c)  A  person  skilled  in  the  running  of  railroad  trains 
may  be  asked  as  an  expert  in  a  negligence  case,  upon  an 
assumed  state  of  facts  which  the  evidence  tended  to  prove, 
whether  in  the  case  assumed  the  brakemen  were  in  their 
proper  places. 

Railroad  v.   Rniitli,  22  0.  S.  227. 

(d)  A  railroad  being  sued  for  negligently  running  down 
stock,  the  engineer  of  the  train,  with  several  years'  experi- 
ence in  running  locomotives,  may  give  his  opinion  as  an  ex- 
pert whether,  in  view  of  the  distance  between  the  animals 
and  the  train,  it  was  possible  to  avoid  the  injury.  On  the 
same  principle,  motormen  Avould  be  competent  in  similar 
cases. 

Railroad   v.   Bailey,    11   0.   S.   333. 

Harris  v.  Railway,  4  0.  App.   108,  21   C.  C.    (X.S.)    200. 

(e)  Expert  testimony  is  competent  in  an  action  in  quo 
warranto  against  a  railway  company,  Avhere  the  issue  is  as 
to  whether  a  certain  proposed  track  is  a  side-track  or  one 
to  be  used  for  a  private  purpose. 

State,  ex  rel.,  v.  Terminal  Co.,   1   C.  C.    (X.S.)    513,   14  C.  D.  321. 

360.  APPLIANCES. 

(a)  Witnesses  may  give  expert  evidence  concerning  the 
construction  and  operation  of  a  certain  appliance,  where  it 
appears  that  they  have  operated  similar  appliances  of  a 
slightly  different  size  or  in  a  slightly  different  position. 

Sherwin   Co.  v.  Kavanaugh.  22   C.  C.    (X.S.)    97, 


445  OPINION    EVIDENCE  §  3G0 

(b)  "When  the  wliole  function  of  a  brake  equipment  is  to 
regulate  the  speed  of  a  ear  "wliieli  runs  slowly  and  at  a  uni- 
form rate  down  a  slight  grade  for  a  few  hundred  feet  only, 
expert  testimony  as  to  railway  freight-train  standards  is  in- 
applicable, and  its  admission  would  be  erroneous. 

Speller  v.  Brewing  Co.,  5  X.  P.   (X.S.i   oill,   l(i  O.  D.  rrlO. 

(c)  An  expert  can  not  testify  as  to  distance  within  which 
a  particular  car  could  be  stopped,  unless  he  has  had  experi- 
ence "svith  that  car  or  others  similarly  equipped;  but  he  may 
testify  that  cars  differently  equipped  can  be  stopped  in  a 
shorter  distance,  -where  the  purpose  of  such  testimony  is  to 
show  the  speed  at  which  the  car  which  ran  over  plaintiff 
could  be  safely  run. 

Railway  v.  Connor,  G  C.  C.   (N.S.)   361,  17  C.  D.  220. 

(d)  AVitnesses  who  testify  that  they  are  acquainted  Avilh 
street  railroads  in  various  cities,  and  with  the  character  of 
life-guards  generally  used  on  cars,  are  competent  to  testify 
from  observation  and  experience  that  those  in  general  use 
are  adapted  to  the  purpose,  and  that  they  are  beneficial  h\ 
the  way  of  saving  and  protecting  life;  and  also  to  testify  as 
to  the  character  of  the  guard  used  on  a  particular  car  and 
that  it  had  no  tendency  whatever  to  preserve  or  save  life. 

Transit  Co.  v.  Dagenbacli,  11  C.  D.  307. 

(e)  In  an  employe's  action  against  the  employer  for  in- 
jury in  using  a  machine,  a  witness  can  not  be  permitted  to 
testify  as  to  how  much  knowledge  of  the  danger  a  person 
would  have  from  having  seen  the  machine  work,  and 
h-ving  acted  as  helper  a  few  times.  A  witness  can  not  testify 
}.  -  tu  another  man's  mind  or  his  knowledge.  And  if  is  douhS 
ful  whether  an  expert  should  be  allowed  to  testify  as  to 
the  length  of  time  it  would  refpiirc  one  of  onliiiary  itifflli- 
gence  to  acquire  sufficient  experience  to  use  an  appliane(>. 

Castings  Co.  v.  Luscombe,  6  C.  D.  POl,  0  C.  C.  0^0,  C.^X 
r,o\ve  V.  P.owe,  5  C.  C.    (X.S.)    233,  1(5  C   D.  4;n. 
Cf.  Railway  v.  Mon-lan.I,  12  C.  D.  012. 

(f)  One  who  has  for  ten  years  rniiili"  (•.ir-liuildiiig  hh 
business  and  given  special  attention  to  f;ir-wli('cls  and  tlicii- 
construction,  is  competent  to  give  an  opinion  of  the  value  o^' 


§  361  METZLER'S    OHIO   TRIAL    EVIDENCE  446 

the  hammer-test  as  a  means  of  discovering  defects.  And 
testimony  to  the  effect  that  a  break  in  a  car-wheel  was  an 
old  break  is  not  rendered  incompetent  because  the  appear- 
ance of  the  iron  was  not  described. 

Railroad   v.   Sliejipard,   M]   0.   S.   OS. 

Traction  Co.  v.  Ward,  6  C.  C.   (X.S.)   385,  17  C.  D.  761. 

(g)  Expert  evidence  may  properly  be  admitted  in  a 
criminal  trial,  where  the  charge  is  gambling  by  means  of  a 
game  known  as  craps  or  policy.  Experts  may  be  permitted 
to  testify  as  to  what  constitutes  the  games  of  policy  and 
craps  and  explain  the  same  to  the  jury,  as  jurors  are  not 
presumed  to  know  or  be  acquainted  with  the  different  games 
of  chance. 

Fields  V.  State,  4  N.  P.   (X.S.;   4(il,  17  O.  D.  IG. 

Adams  v.  State,   14  0.  D.  257. 

361.  RATE  OF  SPEED. 

(a)  Witnesses  having  no  special  knoAvledge  or  experi- 
ence in  the  running  or  management  of  cars  or  trains,  but 
having  the  ordinary,  average  familiarity  with  them,  who 
state  that  they  are  qualified  to  give  an  opinion  as  to  speed, 
are  competent  to  express  an  opinion  as  to  the  rate  of  speed 
of  a  street-car  or  train,  in  an  action  for  personal  injuries  or 
wrongful  death  where  the  speed  of  the  train  or  car  is  ma- 
terial. 

Railway  v.  Van  Horn,  21  C.  C.  337,  12  C.  D.  106. 
Transit  Co.  v.  Dagenbach,   11   C.   D.   307. 
Railroad  v.  Stoltz,  9  C.  D.  638,  18  C.  C.  93. 
Railroad  v.  Westenhuber,  22  C.  C.  67,  12  C.  D.  22. 

(b)  The  opinion  as  to  the  speed  of  a  train  simply  involves 
the  ordinary  ideas  of  time,  space  and  motion.  It  is  a  com- 
mon occurrence  for  witnesses  to  testify  as  to  the  rate  at 
M'hich  a  man  is  moving,  or  at  which  a  horse  is  moving;  and 
a  moving  train  is  simply  one  of  another  class  of  moving  ob- 
jects, and  is  a  matter  within  the  common  observation  and  ex- 
perience of  men.  While  a  non-expert  may  not  be  so  accurate 
as  an  expert  in  estimating  speed,  yet  his  knowledge  of  speed 
may  enable  him  to  give  testimony  which  will  be  an  aid  in 
determining  whether  under  all  the  circumstances  of  the  case 


447  OPINION    EVIDENCE  §361 

the  speed  was  excessive.  The  evidence  of  the  expert  who  has 
had  daih'  opportunities  to  observe  the  speed  of  trains  might 
be  of  greater  weight  than  that  of  .the  ordinary  witness; 
but  that  goes  only  to  the  weight  of  tlio  testimony,  and  not 
to  the  competency  of  the  witnesses. 

Railway  v.  Van   TTorn,  21    C.   C.  337,   12   C.  D.   lOfi. 

Railroad   v.  Stoltz,  I)  C.  D.  638,    IS  C.  C.  93. 

Traction  Co.  v.  Beebe,  3  O.  App.  213,  21  C.  C.   (X.S.)    'AS. 

Cf.  Nicholson  v.  Traction  Co.,  U  X.  P.   (N.S.)    177,  23  ft.  I),  l.-.l. 

(c)  It  does  not  require  an  expert  to  determine,  when 
riding  in  a  car,  whether  the  speed  has  been  slackened;  and 
the  testimony  of  passengers  upon  an  electric  car  that  just 
prior  to  an  accident  the  car  was  running  at  its  usual  speed, 
and  that  there  was  no  slackening  of  speed  until  the  collision 
occurred,  is  competent.  But  where  the  opinion  of  a  witness 
as  to  rate  of  speed  is  based  on  results  of  a  collision,  his  evi- 
dence should  be  excluded. 

Railway  v.  TTnntor,   10  C.   C.    (X.S.)    564,   12   C.   D.   760. 
Railway   v.  Boltz,   16   C.   C.    (N.S.)    383. 

(d)  An  opinion  as  to  the  speed  at  which  an  electric  car 
is  being  run  is  competent  when  expressed  by  one  who  re- 
sides where  he  sees  such  cars  in  operation  daily,  and  often 
rides  upon  them,  notwithstanding  he  has  had  no  experience 
in  their  operation.  Such  an  opinion  should  be  allowed  to  go 
to  the  jury  for  what  it  is  worth. 

Traction  Co.  v.  Dro\\T],  7  C.  C.   (X.S.)  540,  IS  C.  D.  735. 

(e)  "Where  the  driver  of  an  automobile  testifies  that  he 
has  had  seven  or  eight  years'  experience  and  knew  \ho  s|)(mm1 
at  which  he  was  going,  it  is  error  to  exclude  his  ojtinion 
although  he  did  not  look  at  his  speedometer. 

Kramer  v.  Elake,  18  C.  C.   (N.S.)    77,  81. 

(f)  Where  the  plaintiff  has  alleged  thai  llic  autoniobilc 
which  collided  witli  liis  own  was  being  driven  at  a  rui-ious. 
unlawful  and  reckless  rate  of  speed,  contrary  to  the  hiws  of 
the  state,  and  that  the  driver  had  no  conti-ol  over  said  ma 
chine  at  the  time  of  the  collision,  it  is  prejudicial  error  to 
sustain  an  objection    to   tlic   lesliiiiony   of  an    ex|)erl.    wlio,    if 


§  363  METZLER'S    OHIO    TRIAL    EVIDENCE  448 

permitted,  would  have  testified  that  in  liis  opinion  the  defend- 
ant driver  did  not  have  his  machine  under  control. 
Beeson  v.  Crisa,  7  0    App.  482,  27  O.  C.  A.  454,  29  C.  D.  300. 

362.  ANIMALS. 

(a)  In  an  action  for  rescission  of  a  contract  for  the  pur- 
chase of  a  horse  for  failure  of  warranty,  it  is  not  error  to 
permit  one  who  has  had  long  experience  with  horses  to 
testify,  although  not  a  veterinarian.  And  it  is  competent  to 
prove  by  one  acquainted  with  the  habits  and  disposition  of 
horses  that  a  stallion  is  liable  to  jump  over  fences  or  break 
out  of  pasture. 

Palmer  v.  Cowie,  7  C.  C.   (X.S.)   46,  17  C.  D.  617. 
Kittredge   v.  Cincinnati,   0  C.  C.   (N.S.)    046,   IS  C.  D.  100. 

(b)  If  a  non-expert  witness  has  stated  the  facts  within 
his  knowledge  and  has  been  allowed  without  objection  to 
give  his  opinion  that  a  dog  was  of  a  quiet  disposition,  he  may 
be  cross-examined  as  to  the  facts  on  which  his  opinion  is 
based  and  as  to  his  want  of  knowledge  of  facts ;  but  he  can 
not  be  asked  his  opinion  on  facts  not  within  his  knowledge. 

Hayes  v.  Smith,  62  0.  S.  161. 

363.  NEGLIGENCE. 

(a)  Whether  this  or  that  act  amounts  to  negligence  is 
ordinarily  a  matter  of  judgment  and  common  experience 
rather  than  of  science  or  skill,  and  the  opinions  of  experts 
are  inadmissible  in  evidence  concerning  the  same.  An  expert 
may  be  asked  whether  certain  things  were  ])roperly  or  skill- 
fully done,  but  not  whether  a  person  was  guilty  of  want  of 
ordinary  care  or  of  negligence  in  doing  of  such  things. 

Coal  Co.  V.  Jones,  20  C.  D.  5RS,  11  C.  C.    (X.S.)   203.  205. 

Cf.  Orlinkowski   v.  Glouik,   22   C.   C.    (X.S.)    206. 

Pen  Co.  V.  Juengling,  2  0.  App.  20,  21  C.  C.    (X.S.)    503,  25  C.  D.  308. 

(b)  "Where  it  is  practicable  to  place  plainly  before  the 
jury  the  facts  and  circumstances  surrounding  a  claimed  de- 
fect in  the  roof  of  a  coal  mine,  it  is  error  to  permit  an  expert 
to  testify,  that  if  the  fire-boss  had  gone  through  the  entry 
before  the  men  went  to  Avork  and  used  ordinary  care  in  the 


449  OPINION    EVIDENCE  §  363 

inspection   of   the    roof,    he    would   have   discovered    the    fact 
that  the  roof  was  dangerous  and  liable  to  fall. 

Coal  Co.  V.  Jones,  11  C.  C.   (N.S.)   293,  20  C.  D.  5SS. 

Cf.   Railway   v.   Morcland,    12    C.   D.    612. 

(c)  In  an  action  to  recover  damages  for  a  personal  in- 
jury claimed  to  have  resulted  from  the  negligence  of  the  de- 
fendant railway,  it  is  proper  to  exclude  the  opinion  of  a  non- 
expert witness  that  there  was  an  opportunity  to  check  the 
car ;  and  his  opinion  that  the  plaintiff  might  have  been  saved 
from  injury  should  be  excluded,  as  that  is  a  question  for 
the  jury. 

Foy  V.  Railway,  6  C.  D.  30fi.   10  C.  C.  151. 

(d)  Since  a  witness  can  not  give  his  opinion  as  to  the 
cause  of  an  accident,  as  that  ])laintiff,  in  his  opinion,  stepped 
from  the  car  Avhile  it  was  in  motion,  a  Avritten  memorandum 
made  by  such  witness  in  which  he  states  his  opinion  as  to  the 
cause  of  the  accident  in  words  to  that  effect  should  be  ex- 
cluded. 

Traction  Co.  v.  Hackett.  0  0.  A  pp.  97,  2S  0.  C.  A.  5fiG.  30  C.  B.  208. 

(e)  It  is  proper  to  exclude  the  opinion  of  an  expert  wit- 
ness as  to  whether  certain  cog-wheels  were  exposed,  where 
the  jury  had  viewed  the  premises  and  had  before  them  the 
evidence  with  reference  to  said  gearing.  The  question  was 
one  for  the  jury. 

Laidlaw  Co.  v.  Miller,  12  C.  C.   (X.S.)   246,  21   C  T).  r..-0. 

(f)  It  is  improper  to  i)ermit  an  expert  witness  to  give 
his  opinion  as  to  whether  it  was  safe  to  operate  an  ordinary 
foot-brake  which  had  been  worn  smooth  through  use,  so  that 
the  foot  was  apt  to  slip  off,  there  being  nothing  complicated 
about  the  brake,  and  the  question  being  the  ultimate  fact 
for  the  jury  to  find  from  all  the  evidence  in  the  case. 

Kile  Mfg.  Co.  V.  Peterson,  16  C.  C.    (X.S.)    3:J0. 

(g)  A  witness  having  stated  the  facts  and  situation  as  to 
a  method  of  loading  and  unloading  ears,  can  not  state 
whether  it  was  a  convenient  (tr  inconvenient  iiifthod,  oi-  how 


§363  METZLER'S    OHIO   TRIAL    EVIDENCE  450 

inconvenient,    when    this   was    the    question    for    the    jury    to 
determine. 

Brandon  v.  Railway,  8  C.  D.  642,   17   C.  C.  705. 

(h)  In  an  action  for  injury  from  an  excavation  in  a  road 
or  street,  opinions  that  the  place  was  dangerous  are  incom- 
petent. But  if  on  cross-examination  the  witness  testifies  that 
the  condition,  as  defendant  claimed  it  to  be,  was  not  danger- 
ous, it  is  not  error  on  re-examination  to  get  his  opinion  that, 
as  claimed  by  plaintiff,  it  was  dangerous. 

Turnpike  Co.  v.  Coover,  26  0.  S.  520. 
Railroad    v.   Nolthenius,   40   0.   S.    376. 


CHAPTER  XXV. 

PRIVATE  WRITINGS. 

364.  Primary  evidence. 

."ifif).  Rule  as  to  collateral  matters. 

S(>G.  Secondary  evidence — General  rule. 

.'{fi7.  Writinjis  beyond  jurisdiction. 

368.  Abstracts  of  books. 

30!).  Lost  or  destroyed  writings. 

370.  Question  of  loss  for  the  court. 

371.  Notice   to  produce. 

?72.  Notice  must  be  reasonable. 
373    Notice  not  always  nccessarj'. 

374.  Order  to  produce. 

375.  Inspection  and  copy. 
37f).  When  master  to  inspect. 

377.  Copj'  of  instrument. 

378.  Proof  of  execution — When  necessary. 

379.  Witnesses  to  prove  e.xecution. 

380.  Exceptions— Ancient  documents,  etc. 
3S1.  Introduction  of  writings. 

382.  Form— Statute  of  frauds. 

383.  Construction  of  writings. 

364.  PRIMARY  EVIDENCE. 

(a)  It  is  a  rule  that  a  party  offering  to  prove  any  matter 

which  is  in  writing  is  bound  to  produce  the  writing  when  it 

is  the  best  evidence  of  the  matter  sought  to  be  proved.     The 

Avriting  would  be  primary  evidence,  and  all  inferior  evidence 

would  be  secondary.     The  purpose  of  the  rule  is  to  prevent 

the  introduction  of  evidence  when  the  court  is  satisfied  that 

better  evidence  is  in  the  possession  or  uiuler  the  control   of 

the  party,  and  he  has  not  given  a  sufficient  excuse   for  his 

failure  to  produce  it. 

Sasser  v.  State.  13  Oh.  453,  484. 
Jolinson  v.  Steadnian,  3   Oh.  !)4,  O?. 

(b)  Where  a  person  has  admitted  that  he  Avas  the  autluu- 
of  a  libel  ill  a  certain  newspaper,  any  other  newspaper  of 
the  same  impression  may  be  read   to   tlie  jury,   and    it    is  .lot 

451 


§  365  METZLER'S    OHIO    TRIAL    EVIDENCE  452 

secondary  evidence.  Any  newspaper  of  an  edition  is  pri- 
mary evidence  of  the  contents  of  any  other  paper  printed  in 
that  edition.  And  a  telegram  as  given  to  the  receiver  may 
be  properly  admitted  in  evidence;  it  is  not  necessary  to 
secure  the  original  written  by  the  sender. 

IMcLauglilin  v.  Russell,   17   Oli.  475. 

riillnmn  Co.  *v.  Willctt,  17  C.  D.  049,  7  C.  C.    (N.S.)    173,  175. 

(c)  In  section  6399  of  the  General  Code  it  is  provided 
that  a  trust  may  be  shown  to  exist  without  proving  or  pro- 
ducing an  article  of  agreement,  and  that  the  character  of  the 
trust  may  be  established  by  proof  of  its  general  reputation 
as  such.  The  provision  admitting  general  reputation  as  proof 
of  the  character  of  the  trust  was  held  to  be  unconstitutional 
and  void. 

Hnmmond    v.   State,   7S   O.   S.    15. 

Hughes  V.  State,  9   C.  C.    (N.S.)    369,   19   C.  D.  237. 

365.  RULE  AS  TO  COLLATERAL  MATTERS. 

(a)  But  where  the  fact  to  be  proved  is  collateral  to  the 

writing,  oral  evidence  may  be  admitted.     The  existence  of  a 

writing,  but  not  its  contents,  may  be  proved  by  parol.     And 

where  a  question  in  regard  to  a  contract  does  not  call  for  its 

terms,  but  for  what  was  done  under  it,  the  evidence  should 

be  admitted. 

Fogarty  v.  State,  0  0.  D.  477,  6  N.  P.  248. 
Keifelci  V.  State,  3  C.  C.    (N.S.)    551,  13  C.  D.  246. 
Akron  v.  Temple,   16  C.  C.   (N.S.)   327. 

(b)  A  witness  may  testify  that  he  sold  shares  of  stock 
and  delivered  the  certificates  without  producing  the  certifi- 
cates for  inspection.  The  existence  and  transfer  of  a  writing 
may  be  proved  without  jDroducing  it. 

Railway  v.  Rawson,  16  Bull.  423.  9  O.  "\  Tl.  709. 
Emrie   v.    Gilbert,    Wright,    764,    765. 

(c)  The  contents  of  a  writing  that  could  have  been  pro- 
duced can  not  be  proved  while  cross-examining  the  witness 
of  the  adverse  party.  But  where  there  is  no  dispute  about 
the  contents,  a  strict  cross-examination  of  a  witness  as  to  a 


453  PRIVATE    WRITINGS  §  366 

M'riting  is  not  to  be  narrowed  because  it  calls  for  the   con- 
tents. 

State   V.   Lent,   Tappan,    105. 

Boyle   V.   State,   6   C.   C.    1G3,   3   C.  i).   397. 

(d)  A  corporation  organized  not  for  profit  may  show  by 
its  charter,  constitution  and  by-laws,  or  by  oral  evidence  not 
inconsistent  therewith,  that  it  is  organized  solely  for  the  pur- 
pose of  administering  a  public  charity,  the  foundation  of 
which  is  derived  from  private  donations. 

O'Brien  v.  Hospital  Association,  96  0.  S.   1. 

(e)  Though  the  record  is  the  best  evidence  of  a  matter 
of  record,  such  as  the  fact  that  a  person  is  an  officer  of  a 
bank,  yet  the  admission  of  the  fact  by  the  defendant  is  com- 
petent evidence  against  him. 

State  V.  Buchanan,  Wright,  233. 

366.  SECONDARY  EVIDENCE— GENERAL  RULE. 

(a)  Secondary  evidence  of  the  contents  of  a  Meriting  is 
not  admissible  until  its  absence  is  accounted  for.  Where  the 
defense  to  an  action  on  a  policy  of  insurance  is  the  non-pay- 
ment of  an  assessment,  the  defendant  can  not  prove  the 
assessment  orally  until  after  the  foundation  is  laid  for  sec- 
ondary evidence. 

Clark  V.  Longworth,  Wright,   189. 

Insurance  Co.  v.  Bowersox,  0  C.  C.   1,  3  C.  D.  321. 

(b)  Parol  evidence  of  the  contents  of  a  notice  of  sale  is 
not  admissible  unless  it  appears  that  the  notice  is  not  avail- 
able. And  it  is  not  com])etent  to  offer  parol  evidence  that  a 
sale  of  licpior  was  made  on  a  certain  prescription.  The  writ- 
ten prescription  must  be  produced  if  within  the  power  of 
the  party. 

Andrews  v.  Watson,  12  C.  D.  686. 

McBean   v.   Sears,   8  N.  P.   ISf).  11   O.  D.  2^9. 

Ilubbell  V.  Ebrite,  7  N.  P.  220,  8  0.  D.  IIG. 

(c)  "When  a  written  proposition  is  made  by  one  jiarty 
whicli  is  accepted  by  the  other  party  in  pai-ol  after  an  oral 
modification  of  some  of  its  terms,  such  written  i)roposi1i()n   i; 


§  367  METZLER'S    OHIO    TRIAL    EVIDENCE  454 

the  best  evidence  of  so  much  of  the  resulting  contract  as  it 
contains;  and  the  entire  contract  can  not  be  proved  by  oral 
evidence. 

Railroad  v.  Morey,   47   O.   S.   207. 

(d)  In  a  prosecution  for  forgery,  the  defendant  is  entitled 
to  have  the  alleged  forged  instrument  produced,  or  its  non- 
production  satisfactorily  accounted  for,  before  secondary  evi- 
dence of  its  contents  is  admissible. 

Cochran  v.   State,  25   C.  C.    (N.S.)    430. 
Hart  V.   State,  20  Oh.  49,   52. 
See  Koons  v.  State,  36  0.  S.  195. 

(e)  But  a  party  may  prove  the  instructions  to   an  agent 

of  a  corporation  by  parol  evidence,   in  the  absence   of  proof 

that   they   were   in   v^^riting ;    and   it   is   error   to   exclude    the 

evidence  on  the  assumption  that  the  instructions  v^^ere  written. 

Akron   v.   McComh,    18    Oh.    229. 

Bank  v.  Bank,  6  C.  D.  452,   10  C.  C.  233,  237. 

Cf.  Straus  v.  Payne,   1   W.  L.  J.  410,   1   O.  D.  R.  61. 

367.  WRITINGS  BEYOND  JURISDICTION. 

(a)  It  is  the  general  rule  that  secondary  evidence  is  ad- 
missible when  the  original  is  beyond  the  jurisdiction  of  the 
court.  But  this  rule  does  not  apply  in  an  action  on  a  bond 
or  note  where  the  answer  puts  in  issue  its  execution ;  and  it 
is  in  such  case  error  to  admit  a  copy  in  evidence.  The  origi- 
nal must  be  produced. 

Fosdick  V.  Van  Horn  40  0.  S.  459. 

Reed  v.  State,   15  Oh.  217. 

Shillito   V.  Bobbins,   7  Bull.  74.  8   O.  IX  R.   313. 

Burridge  v.  Bank,  Wright,  688. 

(b)  Secondary  evidence  is  admissible  to  prove  that  books 
of  account  do  not  contain  certain  entries,  when  the  books  are 
beyond  the  jurisdiction  of  the  court.  And  when  it  is  neces- 
sary to  prove  the  results  of  an  examination  of  many  books 
of  account,  and  the  examination  can  not  be  conveniently 
r/ade  in  court,  the  results  may  be  proved  by  persons  who 
made  the  examination. 

Fosdick  V.  Van  Horn,  40  0.  S.  459,  467. 
Cf.   Bank   v.   Wallace,    Iddings,    13. 


455  PRIVATE    WRITINGS  §  369 

368.  ABSTRACTS  OF  BOOKS. 

(a)  "Where  books  and  documents  are  multifarious  and 
voluminous,  abstracts  and  schedules  which  have  been  pre- 
pared therefrom  by  an  expert  accountant  may  be  admitted  in 
evidence ;  but  in  such  case  the  books  and  documents  must 
either  be  first  offered  in  evidence  or  be  in  the  custody  of  the 
court  so  that  the  party  against  whom  such  abstracts  and 
schedules  are  offered  may  have  an  opportunity  from  their 
examination  to  verify  their  correctness. 

Ford  V.  State,  11  C.  C.   (X.S.)    324,  20  C.  D.  592. 

369.  LOST  OR  DESTROYED  WRITINGS. 

(a)  When  the  original  of  a  Avriting  is  lost  and  proper 
search  has  been  made  for  it,  secondary  evidence  is  admissible. 
The  same  rule  applies  to  a  destroyed  instrument ;  and  the 
mutilated  parts  of  a  paper  in  evidence  may  be  proved  in  the 
same  manner. 

Fallis  V.   Griffitli.   Wrijjht  303. 
See  Duckwall  v.  Weaver,  2  Oh.  13. 

(b)  Proof  of  the  loss  of  a  permit  obtained  from  the  mayor 
for  moving  a  building  upon  or  across  a  street  is  competent, 
both  for  the  purpose  of  showing  the  contents  of  the  permit, 
and  that  the  oAvner  was  not  trespassing  in  the  use  Avhich  he 
was  making  of  the  street. 

Traction  Co.  v.  Sterling,  0  C.  C.   (X.S.)    200.    10   C.   D.   227. 

(c)  The    contents    of    a    lost    or    destroyed    will    may    be 

proved  by  competent  parol  testimony ;  and  the  scrivener  who 

wrote  the  will  is  a  competent  witness.     But  the  evidence  must 

be    clear    and    convincing;    and    the    testimony    of    one    wlio 

speaks   from  memory  thirty  years   after  having   having   seen 

the  will  is  not  sufficient. 

Crary  v.  McCrory,  0  N.  P.   (X.S.)    1,  20  O.  D.   110. 

Brewing  Co.  v.  Hardway,  2  0.  App.  171,  17  C.  C.  (X.S.)  475,  26  C.  D. 
443, 

Cf.  Fricdiiour  v.  Friednour,  8  N.  P.  509,  9  O.  D.  406. 

(d)  On  the  probate  of  a  lost  or  destroyed  ■•vill,  the  evi- 
dence of  its  execution  and  its  contents  must  be  clear,  strong, 
positive,  free  from  bias,  ;iiid  convincing  beyoiul  a   ivasoiuible 


J§  369  METZLER'S    OHIO   TRIAL    EVIDENCE  456 

doubt.  A  copy  of  tho  will  made  by  the  attorney  of  the  tes- 
tator has  been  admitted  for  the  purpose  of  proving  the  eon- 
tents. 

Cole  V.  McClure,   88  O.  S.   1. 

In  re  Lasance,  7  O.  D.  24(i,  5  X.  P.  20. 

(e)  Where  parol  evidence  is  relied  on  to  prove  a  deed 
alleged  to  have  been  lost,  such  evidence  must  clearly  and 
satisfactorily  show  the  existence  and  execution  of  the  sup- 
posed deed  and  so  much  of  its  contents  as  will  enable  the 
court  to  determine  the  character  of  the  instrument. 

Cillmoro   v.   Fitzfrorald.  2fi  O.   S.   171. 

Smith    V.    KviW    5    ().    1).    44<»,    5    N.    P.    4!tr). 

Slipnian  v.  Telschow,  4   C.  C.    (N.IS.)    G:!."),   14  ('.   1).  530. 

(f)  But  proof  of  a  sale  on  execution  and  an  order  for  a 
deed  will  lay  the  foundation  for  evidence  that  a  deed  was 
made ;  and  less  proof  will  then  be  necessary  than  in  the  case 
of  a  lost  private  deed,  and  the  due  execution  of  the  lost 
deed  will  be  presumed. 

Armstrong  v.  McCoy,  8   Oli.   128. 

(g)  When  an  old,  unrecorded  deed  is  lost  and  the  sub- 
scribing witnesses  are  dead,  the  usual  rules  of  authenticating 
deeds  must  be  dispensed  with  ;  and  evidence  of  such  collateral 
facts  as  will  furnish  a  fair  presumption  of  the  execution  and 
contents  of  the  lost  deed  must  be  admitted. 

Allen   V.   Parish,    3   Oli.    107,    124. 
Blackburn   v.    Blackburn,    8    Oli.    SI,    83. 

(h)  Copies  of  deeds  made  by  disinterested  persons  of 
good  character,  and  under  circumstances  that  create  no  im- 
putation of  fraud,  may  be  admitted.  When  there  is  evidence 
that  a  deed  was  made,  a  copy  made  in  a  ])0()k  by  the  notary, 
now  dead,  and  which  is  corroborated  by  a  strong  chain  of 
circumstances,  is  admissible  as  secondary  evidence  of  the 
lost  deed. 

Allen   V.  Parish,   3  Oh.  107,   126. 

See  Kilbourn  v.   Fury,  20  U.   S.    153,   101. 

(i)  Tf  the  proposition  is  to  prove  a  parol  grant  of  real 
property,  it  would  be  within  the  statute  of  frauds;  but  where 


457  PRIVATE    WRITINGS  §371 

it  is  proposed  to  prove  that  a  grant  was  made  in  writing,  and 
in  conformity  with  the  law  regulating  the  conveyance  of  real 
estate,  it  is  otherwise ;  and  secondary  evidence  will  be  re- 
ceived. When  i^arol  evidence  is  admitted  for  the  purpose,  it 
is  to  prove  a  conveyance  in  writing,  and  not  a  parol  convey- 
ance. 

Blackburn  v.  Blackburn,  S  Oh.  81,  S3. 

(j)  If  defendant's  title  is  by  a  deed  twenty-six  years  old, 
which  is  claimed  to  have  been  made  under  a  lost  and  un- 
recorded power  of  attorney,  the  existence  of  such  power  may 
be  proved  by  inferences  and  admissions,  if  this  is  the  best 
evidence  to  be  had.  If  it  shows  clearly  the  existence  and 
the  execution,  the  contents  need  not  be  shown  with  certainty. 

Diehl  V.  Stine.  1  C.  C.  515,  1   C.  D.  287. 

Cf.  Brockway   v.  Warren,  24  O.  D.  311,   11   X.   P.    (X.S.)    228,  232. 

370.  QUESTION  OF  LOSS  FOR  THE  COURT. 

(a)  The  fact  of  loss  is  to  be  proved  to  the  reasonable 
satisfaction  of  the  court ;  and  this  may,  but  need  not  always, 
require  the  affidavit  of  every  person  who  had  access  to  the 
paper.  The  ruling  in  each  case  must  depend  on  the  circum- 
stances; no  general  rule  on  the  subject  can  be  laid  down. 

Wells  V.  :\rartiii,  1   0.  S.  386. 

(b)  In  ejectment  the  facts  of  existence  and  loss  of  a  deed 
are  preliminary  and  addressed  to  the  court ;  the  case  is  then 
submitted  to  the  jury  ui)on  the  contents,  execution,  acknowl- 
edgment, and  delivery.  The  evidence  must  be  such  as  pro- 
duces conviction. 

BlackhTirn   v.   Blackburn,   8   Oh.   81. 
See  Allen  v.  Parish,  3  Oh,  107,  108. 

371.  NOTICE  TO  PRODUCE. 

(a)  Secondary  evidence  will  be  admitted  when  the  origi- 
nal is  in  the  possession  of  the  adverse  ])arty,  and  he  fails  to 
produce  the  same  after  notice.    Upon  failure  of  a  party  after 


'§372  METZLER'S   OHIO   TRIAL    EVIDENCE  458 

notice  to  produce  the  original  copy   of  a  Avriting,  the  dupli- 
cate copy  will  be  admitted. 

Baldwin  v.   State,  6  Oh.   15. 

John    V.    John,   Wright,    584. 

The  Jane  Louisa  v.  Williams,  5  'W.  L.  J.  8,  1  O.  D.  R.  228. 

8ee   also   Section    115r>2,   General   Code. 

(b)  An  impression  copy  of  a  statement,  the  original  of 
which  was  sent  to  the  opposite  party  in  the  case,  is  not  com- 
petent as  evidence  when  no  notice  has  been  served  upon  such 
other  party  to  produce  the  original;  and  the  fact  that  the 
original  was  in  the  hands  of  a  third  person  will  not  excuse 
a  failure  to  serve  such  notice. 

Fulardenu   v.   Smith.  13   C.  C.    (^LS.)    2f>8,   21   C.  D.   649. 

(c)  In  an  action  upon  a  policy  of  insurance,  where  notice 
was  served  ujion  the  underwriters  to  ju'oduce  the  original 
proofs  of  loss  at  the  trial  and  they  failed  to  do  so.  secondary 
evidence  of  the  contents  thereof  was  held  to  be  competent. 

Gilclirist  V.  Transportation   Co.,  21   C.  C.   10.   11    C.  D.  .-^-lO. 

(d)  Tn  an  early  case,  it  was  held  that  notice  was  not 
necessary  in  criminal  cases:  and  if  the  accused  would  with- 
hold a  ]iaper  from  the  i:)rosecutor  and  compel  him  to  give 
parol  evidence  of  its  contents,  the  evidence  stands  in  place 
of  tlie  writing,  and  the  accused  should  iiot  afterwards  be 
allowed  to  make  use  of  the  writing  in  his  defense. 

State    V.    Walla^'an.    Tappan.    PO. 

Kooiis    V.    State.    HU    O.    S.    !!).'>. 

Cf.  Devere  v.  State,  3  C.  D.  249,  5  C.  C.  509, 

372.  NOTICE  MUST  BE  REASONABLE. 

(a)  A  notice  to  produce  a  paper  should  be  served  before 
the  trial.  A  notice  served  during  the  trial  is  not  reasonable 
when  it  is  not  shown  that  the  party  ever  had  the  paper;  and 
the  admission  of  a  copy  in  such  a  case  is  error. 

Choteau  v.  Raitt,  20  Oh.  132. 

(b)  A  party  claiming  that  the  notice  did  not  give  suf- 
ficient time  to  produce  the  writing,  will  not  be  granted  a  new 
trial  because  of  oral  evidence  of  its  contents,  unless  he  shows 


459  PRIVATE    WRITINGS  §374 

prejudice;   and   this  may   be   done   by  producing  the   writing 
on  motion  for  a  new  trial. 

Dougherty  v.  Schlotman,  1  C.  S.  C.  R.  299,  13  0.  D.  R.  557. 

373.  NOTICE  NOT  ALWAYS  NECESSARY. 

(a)  There  are  three  well-established  exceptions  to  this 
rule,  and  in  which  notice  to  produce  is  not  necessary:  (1) 
where  the  instrument  to  be  produced  and  that  to  be  proved 
are  duplicate  originals;  (2)  where  the  instrument  to  be  proved 
is  itself  a  notice,  such  as  notice  to  quit,  or  notice  of  the  dis- 
honor of  a  bill  of  exchange;  (3)  where  from  the  nature  of  the 
action  the  defendant  has  notice  that  the  plaintiff  intends  to 
charge  him  Avith  possession  of  the  instrument. 

Railway  v.  Cronin,  38  C.  S.  122,  125. 

Heller  V.  BeaK  3  C.  C.   (N.S.)   268,  13  C.  D.  540,  545. 

(b)  The  written  notice  to  vacate  premises  required  before 
beginning  an  action  in  forcible  entrj^  and  detainer  may  be 
proved  by  parol  without  giving  notice  to  produce ;  and  where 
demand  for  it  is  made  in  open  court,  the  failure  of  defendant 
to  produce  it  would  he  some  evidence  that  the  notice,  if  pro- 
duced, would  be  against  his  contention. 

Heller  v.  Beal,  3  C.  C.   (X.S.)  268,  13  CD.  540. 

(c)  In  an  action  under  the  mechanic's  lien  law  by  a 
material  man  against  the  owner,  where  the  plaintiff's  case  is 
founded  on  the  notice  he  served  upon  the  owner,  a  formal 
notice  to  produce  is  unnecessary,  and  secondary  evidence  is 
admissible. 

Railway   v.   Cronin,   38   0.   S.   122. 

374.  ORDER  TO  PRODUCE. 

(a)  The  production  of  private  writings  is  provided  for 
by  statute.  "When  in  possession  of  a  third  party,  produ  tion 
is  secured  by  a  subpoena  duces  tecum.  Tlie  statute  provides 
that  the  subpoena  may  direct  the  person  it  names  to  bring 
with  him  any  book,  writing,  or-  other  thing  under  his  control, 
which  he  may  be  compelled  to  produce  as  evidence. 

Spo   Sec.    11503,   General  Code. 

In  re   Rauh,   65   0.  S.   128. 


§374  METZLER'S    OHIO   TRIAL    EVIDENCE  460 

(b)  Upon  motion,  and  reasonable  notice  thereof,  the 
court,  in  which  an  action  is  pending,  may  order  the  parties 
to  produce  books  and  writings  in  their  possession  or  power 
which  contain  evidence  pertinent  to  the  issue,  in  cases  and 
under  circumstances  where  tliey  might  heretofore  have  been 
comi)elled  to  produce  them  by  the  ordinary  rules  of  chancery. 
If  the  plaintiff  fails  to  comply  with  such  order  on  motion, 
the  court  may  give  judgment  for  the  defendant  as  in  case 
of  non-suit;  if  a  defendant  fails  to  comply  with  such  order, 
on  motion  the  court  may  give  judgment  against  him  by 
default. 

Section    11551,   General    Code. 

(c)  The  rule  in  chancery  is  that  a  party  is  entitled  to  a 
discovery  of  such  facts  or  documents  in  his  adversary's  pos- 
session or  under  his  control  as  are  material  and  necessary  to 
make  out  liis  own  case;  but  not  to  a  discovery  of  the  manner 
in  which  the  adverse  party's  case  is  to  be  established,  nor  to 
evidence  which  relates  exclusively  to  the  adverse  party's 
case.  This  rule  applies  also  to  section  11503  of  the  General 
Code,  which  provides  for  the  subpoena  duces  tecum. 

Ex   parte    Schoepf,   74   O.    S.    1. 

(d)  Reports  of  an  accident  were  made  by  a  conductor 
and  motorman  for  the  use  of  the  claim  agent  and  the  attor- 
ney of  the  railway  company  in  case  of  suit  against  it,  and 
remained  in  the  custody  of  either  the  claim  agent  or  the 
attorney.  It  was  held  that  production  of  the  reports  could 
not  be  enforced. 

Ex  parte  Schoepf,  74  O.  S.  1. 

Cf.  State  V.  Rhoads,  81   0.   S.  397. 

(e)  Where  plaintiff  moves  the  court  to  compel  the  de- 
fendant to  produce  at  the  trial  a  writing  claimed  to  be  under 
his  control  as  to  which  the  pleadings  contain  no  admission, 
and  the  defendant  denies  its  existence  and  his  control  of  it, 
it  is  error  to  decide  for  the  plaintiff  on  the  affidavits  and 
render  judgment  as  by  default ;  the  motion  should  be  over- 
ruled, leaving  the  plaintiff  to  proceed  under  the  rules  in 
respect  to  proof  of  the  contents  of  lost  writings  by  second- 
ary evidence. 

Baggott  V.  Goodwin,  17  0.  S.  76. 


461  PRIVATE    WRITINGS  §  375 

(f)  This  section  does  not  authorize  a  court  to  order  the 
adverse  party  to  deliver  documents  to  a  notary  taking  the 
deposition  of  such  adverse  party,  Lut  refers  to  their  produc- 
tion at  the  trial  either  before  the  court  or  a  master  or  referee. 

Kelly  V.  Ingorsoll,   1   C.  L.  R.  210,  4  0.  D.  E.  284. 

(g)  The  production  of  books  and  papers  can  not  be  com- 
pelled, Avhere  it  is  manifest  to  the  court  that  if  they  would 
tend  in  any  way  to  be  useful  in  the  prosecution  of  the  case 
in  hand,  they  must  tend  to  subject  the  party  to  whom  they 
belong  to  penalties  and  punishment. 

Illuminating  Co.  v.  Ilitcliens,  3  X.  P.   (X.S.)   57,  15  O.  D.  522. 
Cf.  Devere  v.  State,  3  C.  D.  249,  5  C.  C.  509. 

375.  INSPECTION  AND  COPY. 

(a)  Either  party,  or  his  attorney,  in  writing,  may  demand 
of  the  adverse  party  an  inspection  and  cop}^  or  permission 
to  take  a  copy,  of  a  book,  paper  or  document  in  his  posses- 
sion, or  under  his  control,  containing  evidence  relating  to  the 
merits  of  the  action  or  defense,  specifying  the  book,  paper  or 
document  with  sufficient  particularity  to  enable  the  other 
party  to  distinguish  it.  If  compliance  with  the  demand  with- 
in four  days  be  refused,  on  motion  and  notice  to  the  adverse 
party,  the  court  or  judge  may  order  the  adverse  party  to  give 
the  other,  within  the  time  specified,  an  inspection  and  copy, 
or  permission  to  take  a  copy,  of  such 'book,  paper  or  docu- 
ment. On  failure  to  comply  with  such  order,  the  court  may 
exclude  the  paper  or  document  if  offered  in  evidence,  or  if 
wanted  as  evidence  by  the  party  applying,  may  direct  the 
jury  to  presume  it  to  be  such  as  such  party,  by  affidavit, 
alleges  it  to  be.  This  section  shall  not  prevent  a  party  from 
compelling  another  to  produce  any  book,  paper  or  document 
when  he  is  examined  as  a  witness. 

Section  11552,  General  Code. 

(b)  Under  this  section,  when  the  demand  for  inspection 
is  general  in  its  nature,  the  court  has  power  to  modify  or 
make  such  an  order  as  will  serve  the  purpose  for  whif'h  th^* 
evidence  is  sought.  And  such  order  may  he  made  even  thou<'-'» 
plaintiff  is  a  member  of  a   rival  firm,  but   will   !;(>  s!)   fi-am(^d 


§  375  METZLER'S    OHIO    TRIAL    EVIDENCE  462 

as  to  confine  snch  examination  to  matters  relevant  to  the 
issue.  The  demand  is  not  limited  to  cases  triable  to  a  jury; 
and  the  fact  that  production  may  be  compelled  by  subpoena 
duces  tecum  is  not  a  defense. 

Arbuckle  v.  Spice  Co.,  11  C.  D.  743,  21  C.  C.  347. 

(c)  In  making-  an  order  for  inspection  of  the  books,  pa- 
pers and  documents  of  a  corporation,  it  is  not  proper  to 
require  that  they  be  removed  to  a  place  distant  from  the 
place  where  they  are  ordinarily  and  properly  kept.  And 
there  should  be  a  finding  by  the  court  that  said  books  and 
documents  contain  evidence  pertinent  to  the  issue. 

Richards  v.  Bunte,   15   C.  C.    (N.S.)    401,  23  C.  D.  37. 

(d)  A  court  has  the  right  independent  of  statute  to  pun- 
ish a  party  for  disobedience  of  an  order  directing  him  to 
allow  the  adverse  party  an  inspection  of  certain  books  and 
documents.  And  the  adverse  party  may  object  to  the  ad- 
mission of  written  evidence  on  the  ground  that  a  request  for 
inspection  had  not  been  complied  wuth;  but  this  objection 
may  be  waived. 

Arbuckle  v.  Spice  Co.,   11   CD.  726,  21  C.  C.  3.17. 

Halstead  v.   Insurance    Co.,    14   N.  P.    (N.S.)    113,   24  O.   D.  296. 

(e)  Where  an  order  of  court  has  been  made  granting  a 
right  to  inspect  books  and  papers,  and  a  dispute  arises  as 
to  the  right  to  inspect  any  particular  book  or  paper,  that 
matter  should  be  brought  before  the  court  granting  the  order 
by  the  party  objecting  to  the  inspection. 

Arbuckle  v.  Spice  Co.,  11   CD.  726,  21   C.  C  357. 

(f)  Where  part  of  the  records  of  a  corporation  is  offered 
in  evidence,  the  rest  being  sealed  up,  a  cross-examination  as 
to  the  sealed  part  is  properly  refused  when  opposing  counsel 
state  they  have  no  relevancy.  To  entitle  to  cross-examine  on 
such  part,  the  proper  demand  should  be  made  under  sections 
11552-3  of  the  General  Code. 

Railway  v.  Railway,  5  C  D.   643,  12  C  C  367. 

is)  ^  person  charged  with  a  crime  is  not  entitled  to  in- 
spect a  copy  of  a  written  interview  with  one  who  later  was  a 
witness   before    the    grand   jury,    nor    entitled    to    inspect    the 


463  PRIVATE    WRITINGS  §  876 

minutes  of  the  evidence  taken  before  the  grand  jury ;  and  it 
is  error  for  the  court  to  oi'der  the  prosecutor  to  deliver  either 
of  such  copies  to  the  defendant  or  his  counsel  for  inspection. 
State  V.  Rhoads,  81  0.  S.  ^i'T. 

(h)  In  a  suit  by  oi  ^  jjartnor  against  another  to  set  aside 
a  fraudulent  sale,  it  was  held  on  a  motion  by  the  plaintiff 
for  the  inspection  of  the  books  that  the  evidence  to  support 
the  motion  need  not  amount  to  proof  of  the  plaintiff's  case; 
and  tliat  a  showing  of  a  probable  want  of  correctness  in  the 
statements  of  defendant  would  be  sufficient  to  sustain  the 
motion. 

Kixon  V.  Chatfield,  2  C.  S.  C.  E.  76,  13  0.  D.  R.  778. 

(i)  Where  defendant  pleads  a  release  given  by  plaintiff's 
intestate  in  his  lifetime,  plaintiff  may  by  motion  require  the 
defendant  to  permit  an  inspection  thereof.  Such  release  can 
not  be  said  to  be  a  confidential  communication  nor  relate 
exclusively  to  defendant's  case. 

Ward  V.  Steel  Co.,  17  N.  P.  (N.S.)    331,  26  0.  D.  569. 

(j)  The  fact  that  a  demand  was  made  to  produce  certain 
books  and  papers  containing  evidence  relating  to  the  merits 
of  the  action  and  defense,  does  not  estop  the  party  demand- 
ing production  from  objecting  to  their  introduction.  The 
object  of  the  production  of  books  and  papers  is  that  the  party 
demanding  them  may  have  an  opportunity  of  inspecting  them. 
Barger  v.  Railway,  30  C.  D.  61,  28  0.  C.  A.  92,  96. 

376.  WHEN  MASTER  TO  INSPECT. 

(a)  If  the  party  in  possession  of  any  such  book,  paper, 
writing  or  document  alleges  that  it  or  a  part  thereof  is  of 
mere  private  interest,  or  of  such  character  that  it  ought  not 
to  be  produced,  or  an  inspection  or  copy  allowed  or  taken, 
on  motion  of  either  party,  the  court  may  direct  a  private 
examination  of  it  by  a  master.  If  he  finds  that  such  book, 
paper,  writing  or  document  contains  matter  pertinent  to  tlie 
case,  and  proper  to  be  produced,  inspected  or  copied,  he  shall 
report  it  to  the  court,  or  a  copy  of  such  part  as  he  finds 
nertinent   to   the   case   and   proper   to  bo   j^-oduced,    insi)oeted 


§  378  METZLER'S    OHIO    TRIAL    EVIDENCE  464 

or  copied.     The  book,   paper,   writing   or   document,   or  part 
thereof,    so    reported,    shall    be    admitted   in   evidence    on   the 
trial,  unless  for  proper  cause  the  court  excludes  it. 
Section    IIS.IS,    General    Code. 


C77.  COPY  OF  INSTRUMENT. 

(d)  Either  party,  or  his  attorne.y,  if  required,  shall  de- 
liver to  the  other  party,  or  his  attorney,  a  copy  of  any  in- 
strument of  Avriting  whereon  the  action  or  defense  is  founded, 
or  which  he  intends  to  offer  in  evidence  at  the  trial.  If  the 
plaintiff  or  defendant  refuses  to  furnish  the  copy  required, 
the  party  so  refusing  shall  not  be  permitted  to  give  the  origi- 
nal in  evidence  at  the  trial.  This  section  does  not  apply  to 
a  paper,  a  copy  of  which,  as  required  by  law,  is  filed  with 
a  pleading. 

Section    11554,    General    Code. 

(b)  An  instrument  which  is  an  evidence  of  indebtedness 
and  should  be  filed  with  the  petition,  is  not  an  instrument  a 
copy  of  Avhich  may  be  demanded  under  this  section.  And  if 
the  original  is  accepted  without  demand  for  a  copy  and  is 
held  for  several  Aveeks,  the  object  of  the  statute  is  satisfied, 
and  a  copy  can  not  be  thereafter  demanded.  The  question 
of  waiver  is  one  for  the  court. 

Jlarks  V.  Fordyce,  2  A.  L.  R.  302,  5  0.  D.  R.  81. 

Cf.  Gibson  V.  Tarina  Co.,  2  Dis.  499,  13  0.  D.  R.  306. 

378.  PROOF  CF  EXECUTION— WHEN  NECESSARY. 

(a)  In  general,  all  private  writings  produced  in  evidence 
must  be  proved  to  be  geiuiine.  A  j^aiier  writing  is  not  ad- 
missible in  evidence  Avhere  its  execution  is  denied,  and  no 
evidence  is  offered  tending  to  shov/  that  it  was  ever  in  fact 
signed. 

P.imTier  v.  Ison,  8  C.  C.   (X.S.)   SCO,  IS  C.  D.  450. 
Fchaupp  V.  Jones,  8  X.  V.   151,  10  O.  !>.  507. 

(b)  A  deed  purporting  to  have  been  executed  by  the 
president  of  a  corporation,  if  objected  to.  can  not  be  given 
in   evidence   without   proof   of   its   execution.      The   signature 


465  PRIVATE    WRITINGS  §  379 

of  the  president  of  the  corporation  to  such  a   deed  does  not 
prove  itself,  nor  is  it  proven  by  the  seal  of  the  corporation. 

\Yalsh  V.  Barton,  24  O.  S.  28,  41. 

Cf.  Hughes  V.  Lehan,  1  C.  C .  !),  1  C.  D.  5. 

(c)  At  any  time  before  the  trial,  either  party  may  exhibit 
to  the  other,  or  to  his  attorney,  any  paper  or  document  ma- 
terial to  the  action,  and  request  an  admission  in  writing  of 
its  genuineness.  If  the  adverse  party,  or  his  attorney,  fails 
to  give  such  admission,  -within  four  days  after  the  request, 
and  the  party  exhibiting  the  paper  or  document  be  afterward 
put  to  expense  to  prove  its  genuineness,  if  that  be  finally 
proved  or  admitted  on  the  trial,  such  expense,  to  be  ascer- 
tained at  the  trial,  shall  be  paid  by  the  party  refusing  to 
make  the  admission,  unless  it  appears  to  the  satisfaction  of 
the  court  that  there  were  good  reasons  for  the  refusal. 

Section  11550,  General  Code. 

379.  WITNESSES  TO  PROVE  EXECUTION. 

(a)  The  execution  of  a  deed  or  other  written  instrument, 
other  than  a  will,  may  be  proved  b}'  either  one  or  more  of 
the  subscribing  witnesses,  the  officer  before  w^hom  the  instru- 
ment was  acknowledged,  or  the  party  who  signed  and  ex- 
ecuted the  same. 

Garrett   v.   Ilanshue,   53   O.   S.  482. 

(b)  "When  other  and  better  evidence  can  not  be  obtained, 
it  is  then  permissible  to  resort  to  the  proof  of  a  person's 
handwriting.  So  where  the  attesting  witness  is  dead  or  be- 
yond the  reach  of  the  process  of  the  court,  his  handwriting 
may  be  proved.  And  absence  of  such  witness  may  be  shown 
by  testimony ;  it  is  not  necessary  that  a  subpoena  be  issued. 
So  w'here  the  assignment  of  a  judgment  is  attested  by  a  wit- 
ness who  is  a  non-resident,  it  is  not  necessary  to  take  the 
deposition  of  the  subscribing  witness,  as  other  evidence  is  ad- 
missible. 

Clark  V.  Boyd,  2  Oh.  56. 

Biclianls  v.  Skiff,  8  0.  S.  586. 

Ilutchirib  V.  Wick,  1  C.  L.  R.  89,  4  O.  D.  R.  ITO. 

(c)  "Wlien  the  subscribing  witness  is  dead  or  uusent,  the 
courts  have  usuallv  admitted  proof  of  the  handwriting  of  the 


§  379  METZLER'S    OHIO    TRIAL    EVIDENCE  466 

obligor ;  but  it  does  not  follow  that  this  proof  must  be  re- 
quired in  addition  to  proof  of  the  liandwriting  of  the  witness, 
nor  is  the  exclusion  of  proof  of  the  handwriting  of  the  wit- 
ness a  necessary  consequence  of  admitting  the  one  where  tlie 
other  can  not  be  obtained.  Under  proper  circumstances,  both 
modes  of  proof  may  be  admissible,  and  either  may  be  suf- 
ficient. 

Clark  V.  Boyd,  2  Oh.  56,  60. 

Graham  v.  IBurggraf,  10  C.  C.   (N.S.)   594,  12  C.  D.  747. 

(d)  Where  a  contract  signed  by  a  person  since  deceased 
is  attested  by  a  witness,  such  witness  must  be  called  or  his 
absence  accounted  for,  before  the  testimony  of  other  wit- 
nesses can  be  received  to  prove  that  the  maker's  signature 
is  genuine  or  was  admitted  by  him  to  be  genuine.  The  testi- 
mony of  the  subscribing  witness  is  better  evidence  than  the 
signer's  admission  or  testimony  as  to  his  handwriting. 

Warner  v.  Tvailroad,  31   0.  S.  2G5. 
Garrett  v.  Hanshue,  53  0.  S.  482,  402. 

(e)  If  a  subscribing  witness  denies  his  signature,  other 
witnesses  may  be  called  to  prove  the  signature  of  the  witness. 
And  this  is  not  impeaching  the  credit  of  one's  own  witness. 
And  where  the  handwriting  of  a  deceased  subscribing  wit- 
ness has  been  proved,  his  declarations  as  to  the  incompetency 
of  the  signer  are  not  competent  to  impeach  the  execution, 
though  impeachment  of  the  character  of  the  witness  may  be 
permitted. 

Duckwall  V.  Weaver,  2   Oh.    13,    14. 

Cf.  Thompson  v.  Thompson,  2  W.  L.  M.  84,  2  0.  D.  R.  214. 

Runyon  v.   Price,    13    0.   S.    1.   8. 

(f)  If  execution  of  the  instrument  is  not  directly  in  issue, 
but  comes  incidentally  in  question,  its  execution  may  be 
proved  by  any  competent  evidence  without  calling  the  sub- 
scribing witnesses.  Such  witnesses  need  not  be  called  when 
the  action  is  not  on  the  instrument,  but  it  is  offered  to  prove 
a  debt  for  money  had  and  received. 

Greenleaf  on  Evidence,  Sees.  573,  576. 
Burnham  v.  Aver,   3   0.  D.  R.   327. 

is)  ^  person  w^hose  name  is  forged-  may  testify  to  the 
forgery  on  the  prosecution  therefor  without  calling  the  sub- 


467  PRIVATE    WRITINGS  §380 

scribing  witness;  for  subscribing  witnesses  are  called  first 
only  because  mutually  agreed  upon,  and  the  reason  does  not 
exist  here. 

Simmons   v.   State,   7   0.    (pt.   1)    116. 

(h)  If  there  is  no  subscribing  witness,  execution  may  be 
proved  by  the  testimony  of  the  signer  of  the  instrument  or 
of  a  person  who  saw  the  writing  executed.  If  neither  can 
be  secured  as  a  witness,  then  evidence  of  the  handwriting  of 
the  signer  is  admissible  as  secondary  evidence. 

Garrett  v.  Hansliue,  53   0.  S.  482. 

Vairin  v.  Insurance  Co.,  10  Oh.  223,  224. 

380.  EXCEPTIONS— ANCIENT  DOCUMENTS,   ETC. 

(a)  An  ancient  writing  may  be  admitted  in  evidence  with- 
out direct  proof  of  execution  when  it  appears  and  })urports 
to  be  of  the  age  of  at  least  thirty  years,  and  is  shown  to  have 
come  from  the  proper  custody ;  that  is,  the  place  where  papers 
of  its  kind  are  usually  deposited.  This  exception  rests  upon 
a  conceded  necessity  and  applies  not  only  to  instruments  of 
a  formal  character,  such  as  wills,  bonds  and  other  deeds,  but 
also  to  receipts,  letters,  entries,  and  all  other  ancient  Avritings. 

Banner  v.  Ison,  18  C.  D.  450,  8  C.  C.   (N.S.)   260,  263. 

Bell  V.   Brewster,  44   0.  S.   600,  604. 

Wright  V.  Hull,  83  0.  S.  385,  306. 

Barr  v.  Chapman,  30  Bull.  264,  11  0.  D.  II  862. 

(b)  A  paper  which  is  offered  as  evidence  of  indebtednesc, 
and  the  execution  of  which  is  put  in  issue  by  the  answer  of 
the  defendant,  is  not  admissible  as  an  ancient  document  prov- 
ing itself,  but  must  be  accompanied  by  evidence  that  it  came 
from  the  proper  custody  and  evidence  of  its  antiquity,  al- 
though it  may  purport  to  be  more  than  thirty  years  old. 

Wright  V.  Hull,   83   0.   S.  385. 

Bunner  v.  Ison,  8   C.  C.    (N.S.)    260,   18  C.  D.  450. 

(c)  A  letter  purporting  to  have  been  written  over  thirty 

years  ago  is  an  ancient  document,  and  where  produced  from 

the  family  papers   of  the   addressee,   it   is   presumed    to   liave 

been  written  by  the  j)urported  writer,  and  if  both  are  dead,  is 

admissible   without   further   authentication. 

Boll    V.   Brewster.   44   0.    S.    600. 

Riordan   v.   Deiicliy,  0  X.  P.    (N.S.)     IcC.   ;  )  :>.  '^.  -260. 


§381  METZLER'S    OHIO   TRIAL    EVIDENCE  468 

(d)  And  the  same  rule  applies  to  what  purports  to  be 
the  signature  of  a  soldier  to  a  receipt  for  his  wages  on  a  pay- 
roll of  a  military  company  in  the  war  of  1812,  which  is  pro- 
duced from  the  archives  of  the  war  department  of  the  na- 
tional government. 

Bell  V.  Brewster,  44  0.  S.  090. 

(e)  Proof  of  execution  is  not  required  where  by  statute 
a  certified  copy  is  made  prima  facie  evidence  of  it,  and  such 
a  copy  is  offered  in  evidence.  If  a  certified  copy  of  the  record 
of  a  deed  or  of  an  official  bond  is  produced  and  offered,  it 
will  be  prima  facie  evidence  of  the  execution  of  the  instru- 
ment. The  cases  do  not  seem  to  agree  as  to  the  effect  of  ad- 
mitting the  record  itself. 

Walsh  V.  Barton,  24  0.  S.  28,  41. 

Kewbergor  v.  Finney,  9  C.  D.  720,  17  C.  C.  215. 

See  Shehan  v.  Davis,  17  O.  S.  571,  580. 

(f)  If  the  instrument  is  produced  by  the  adverse  party 
who  claims  an  interest  under  it,  its  genuineness  need  not  be 
proved ;  for  by  claiming  an  interest  under  it,  he  admits  its 
due  execution. 

,    Swan's  Treatise,   p.   140. 

Greenleaf   on   Evidence,   Sec.   571. 

381.  INTRODUCTION  OF  WRITINGS. 

(a)  When  an  instrument  in  writing  is  produced  by  a 
party  at  the  trial  as  evidence,  and  witnesses  are  examined  in 
relation  to  it  without  objection  to  its  admissibility  from  the 
other  side,  it  is  not  error  for  the  court  to  regard  it  as  evi- 
dence, although  not  formally  offered  and  read  by  the  party 
producing  it.  But  statements  by  counsel  without  objection, 
as  to  facts  contained  in  a  document  not  offered  in  evidence, 
is  not  the  proper  way  to  introduce  evidence. 

Bevington  v.  State,  2  0.  S.   160. 

State,  ex  rel.  v.  Speigel,  22  C.  C.  (KS.)   337,  344. 

Traction  Co.  v.  Kettler,  11  C.  C.   (N.S.)   516,  21  C.  D.  170. 

(b)  A  former  judgment  that  is  referred  to  in  the  evi- 
dence may  be  considered  as  in  evidence,  though  not  formally 
offered,  when  counsel  on  both  sides  make  admissions  as  to 
the  facts  shown  by  such  judgment. 

Zieverink  v.  Kemper,  50   0.   S.   208. 


469  PRIVATE    WRITINGS  §381 

(c)  The  relevant  portions  of  a  record  are  competent  evi- 
dence "without  offering  the  whole  record.  And  where  a  wit- 
ness testifies  that  he  read  only  part  of  a  letter  to  one  inter- 
ested in  the  subject-matter,  another  part  not  read  does  not 
become  evidence. 

Railway  v.  Railway,  3  C.  D.  403,  0  C.  C.  362. 
Corbett  v.  State,  5  C.  C.  155,  3  C.  D.  79. 

(d)  Statements  in  an  affidavit  introduced  as  evidence  of 
a  fact  does  not  make  the  affidavit  competent  to  prove  another 
fact,  to  prove  which  it  is  incompetent  as  evidence.  And  when 
an  ai¥idavit  is  introduced  by  the  plaintiff  as  an  admission  of 
agency,  it  can  not  be  used  by  defendant  as  evidence  of  other 
statements  made  in  the  affidavit. 

Assurance  Co.  v.  Early,  23  C.  C.   (X.S.)    418. 
Herig  v.  Harvey,   23   C.  C.    (N.S.)    338. 

(e)  The   idmission  of  a  document  in  evidence  merely  to 

prove  a  date  is  prejudicial  error,  if  it  tends  to  divert  the  jury 

from  the  real  issue.     And  it  is  error  to  send  to  the  jury  a 

book  of  rules  to  be  used  by  them  in  their  deliberations,  when 

only  a  few  of  the  rules  have  been  offered  in  evidence. 

Moravec  v.  Buckley,   11   Bull    225.  n  O.  D    R.   226. 
Railway    v.    Workman,    06   0.    S.   509,   546. 

(f)  But  in  an  action  on  a  bond,  which  refers  in  its  recitals 
to  a  previous  contract  of  sale  as  having  been  made  on  a  par- 
ticular day.  the  contract,  the  execution  of  which  is  admitted, 
is  competent,  although  it  is  dated  a  few  days  prior  to  the 
day  stated  in  the  bond. 

Serviss  v.  Ptockstill,  30  0.  S.  418. 

(g")  If,  when  part  of  public  documents  are  offered  in  evi- 
dence, the  adverse  party  insists  that  the  ciitii-e  documents 
shall  be  regarded  as  in  evidence,  and  this  is  agreed  to,  it  is 
not  error  to  permit  the  whole  to  be  read  in  evidence  though 
portions  may  be  irrelevant. 

Serviss  v.  Stoekstill,  30  0.  S.  418. 

(h)  And  where  part  of  a  writing  is  proved  by  one  party, 
tlie  other  party  may  introduce  all  other  parts  which  explain, 
()ualifv  or  rel)ut  the  statements  proved  by  tlie  part  of  the 
Avriting  first  introduced. 

Fnton    V.   T.onjiwortli.   10  O.  S.  20. 


§  382  METZLER'S    OHIO    TRIAL    EVIDENCE  170 

382.  FORM— STATUTE  OF  FRAUDS. 

(a)  An  agreement  which  is  within  the  statute  of  frauds 
will  not  be  enforced  in  this  state,  unless  the  agreement,  or 
some  memorandum  or  note  thereof,  is  in  writing  and  signed 
by  the  party  to  be  charged  or  by  some  person  authorized  by 
him  to  sign  it,  even  though  the  agreement  was  made  in  an- 
other state  or  country  where  it  was  competent  to  prove  the 
same  by  parol  evidence. 

TTeaton  v.  Eldridge,  50  0.  S.  87 

(b)  The  memorandum,  wliich  is  merely  the  evidence  of 
the  contract,  may  be  made  and  signed  after  the  completion  of 
the  agreement;  and  even  a  letter  from  the  party  to  be 
charged,  reciting  the  terms  of  the  agreement,  is  sufficient  to 
satisfy  the  requirements  of  the  statute.  But  it  can  not  be 
said  that  the  letter  would  constitute  the  agreement,  for  the 
agreement  was  complete  when  the  minds  of  the  parties  met 
with  respect  to  its  terms.  The  letter  would  only  furnish  the 
necessary  evidence  to  jn-ove  the  agreement. 

Heaton  v.  Eldridpe,  5G  O.  S.  87,  101. 

Ealston  v    McBurney,   G   0    App    303,  27   O.   C,  A.  310,   29  C.  D.   158. 

(c)  Several  writings,  though  made  at  different  times,  may 

be    construed   together   for   the    purpose    of   ascertaining   the 

terms  of  a  contract  required  by  the  statute  of  frauds  to  be  in 

"writing  and  signed  b}'  the  party  to  be  charged  therewith.     If 

some  only  of  such  writings  are  so  signed,  reference  must  be 

specifically  made  therein  to  those  which  are  not  so   signed; 

but  if  each  of  the  writings  is  so  signed,  such  reference  to  the 

others  need  not  be  made,  if,  by  inspection  and  comparison,  it 

appears   that    they   severally  relate   to   or   form   part    of  the 

same  transaction. 

Thayer  v.  Luce,  22  0.  S.  62. 

Coffinberry  v    Blakeslee,  22  C.  C.    (N.S  )   34,  2S  C    D.  462. 

(d)  The  memorandum  in  writing  which  is  required  by  the 
statute  of  frauds  is  a  memorandum  of  the  agreement  between 
the  parties ;  and  it  is  not  sufficient  unless  it  contains  the 
essential  terms  of  the  agreement  expressed  with  such  clear- 
ness   and    certainty   that   they   may   be    understood    from    the 


471  PRIVATE    WRITINGS  §  382 

memorandum  itself  or  some  other  writing  to  which  it  refers, 
without  the  necessity  of  resorting  to  parol  evidence. 

Klin-:  v.  Bordncr,  65  O.  S.  86. 

Laudt  V.  Parchman,  7  O.  App.  164,  29  O.  C.  A.  63. 

(e)  An  instrument  of  writing  in  the  usual  form  of  a  deed 
of  conveyance,  but  not  delivered  as  such,  may  nevertheless  be 
delivered  as  an  executory  contract  or  as  partial  evidence  of  a 
contract  to  sell  and  convey  the  lands  therein  described;  and 
if  signed  and  so  delivered  by  the  vendor,  and  accepted  by  the 
vendee,  it  is  sufificient,  in  an  action  thereon  against  the 
vendor,  to  take  the  case  out  of  the  operation  of  the  statute  of 
frauds.  And  assent  of  the  vendee  to  the  terms  of  the  contract 
and  the  authority  of  his  agent  may  be  shown  by  parol  evi- 
dence. 

Thayer  v.  Luce,  22  O.  S.  62. 

(f)  And  a  will  devising  real  estate,  executed  and  delivered 
to  the  devisee  in  pursuance  of  a  parol  agreement  by  which  the 
testator  for  a  valuable  consideration  agreed  to  devise  that 
real  estate  to  the  devisee,  can  not  be  revoked  by  a  subsequent 
will  so  as  to  escape  the  obligation,  but  may  be  enforced  as  a 
contract. 

Palston   V.   AIcBurney,   G  O.   App.   303,  27   O.   C.   A.  310,   20   C.   D.   loS. 

(g)  And  a  receipt  for  a  sum  of  money,  which  recites  that 

it  is  to  apply  upon  the  purchase  price  of  property  at  a  certain 

number  on   a   named  street,  is  sufficient  to  take  the  contract 

out  of  the  operation  of  the  statute  of  frauds. 

Peck  V.  Osborn.  16  C    C.  (NS  )  592,  27  C.  D.  626. 
Cf.  Boest  V,  Doran,  2  C.  L    R    313,  4  O.  D.  R    525. 

(h)  But  a  duplicate  receipt  for  earnest  money  that  has 
been  paid,  which  has  been  signed  by  the  intended  purchaser 
and  retained  by  the  owner,  and  which  expresses  no  contract 
for  ])urchase  except  by  implication,  and  fixes  no  terms  what- 
ever in  regard  to  a  sale  beyond  the  mere  naming  of  a  price 
and  identifying  the  property,  and  which  was  not  intended  by 
the  parties  to  embody  such  terms  or  to  operate  as  a  contract, 
is  not  a  sufficient  contract,  under  the  statute  of  frauds,  to 
bind  the  purchaser. 

Laudt  V.  Parclimann,  7  O.  App.  164,  20  O.  C.  A.  63. 


§  382  METZLER'S    OHIO   TRIAL    EVIDENCE  472 

(i)  A  written  contract  for  the  sale  of  real  estate  made  and 
signed  by  an  agent  in  his  own  name  and  without  disclosing 
his  agency  or  the  name  of  his  principal,  satisfies  the  require- 
ments of  the  statute  of  frauds,  and  is  binding  on,  and  may 
be  enforced  by,  the  principal. 

Egle  V.  Morrison,  6  C.  C.    (N.S.)    609,  17   C.  D.  497. 

(j)  And  where  the  name  of  an  agent,  with  whom  a  eon- 
tract  for  the  purchase  of  real  estate  was  made,  appears  in  the 
written  memorandum  of  the  agreement  signed  by  the  pur- 
chaser, who  is  the  party  to  be  charged,  the  statute  of  frauds 
is  satisfied,  although  the  names  of  the  principals  are  not  dis- 
closed tlierein. 

Walsh  V.  Barton,  24  O.  S.  28. 

(k)  The  written  authority  of  an  agent  to  make  a  par- 
ticular contract  with  a  third  person  therein  named,  which  is 
signed  by  the  principal,  may  be  delivered  to  such  third  person 
by  the  agent.  And  if  assented  to  by  such  third  person,  the 
contract  is  complete  and  complies  with  the  statute  of  frauds. 

Furnace  Co.  v.  'Raihvay,  22  0.  S.  451. 

Forbis  v.   Sliattlei,  2  C    S.  C.  R.   !)5,   13  0.  D.  R.  789. 

(1)  A  contract  required  by  the  statute  of  frauds  to  be  in 
writing  is  sufficient  if  signed  by  one  of  the  parties  to  be 
charged  and  accepted  by  the  other.  The  bringing  of  a  suit 
for  specific  performance  by  the  party  whose  name  has  not 
been  subscribed  to  the  contract  establishes  its  acceptance  by 
him. 

Egle  V.  Morrison,   6  C.  C.    (N.S.)   609,   17  C.  D.  497. 

(m)  The  statute  of  frauds  requiring  that  some  memoran- 
dum or  note  in  writing  of  certain  agreements  be  made,  does 
not  forbid  the  use  of  secondary  evidence  to  prove  the  con- 
tents of  such  written  agreement.  It  is  true  that  an  agreement 
within  the  statute  could  not  be  proved  by  shoAving  an  oral 
agreement;  but  when  the  ground  is  laid  for  secondary  evi- 
dence, oral  evidence  may  be  introduced  to  show  that  there 
had  existed  an  agreement  in  writing. 

Blackburn  v.  Blackburn,  8  Oh.  81,  83. 


473  PRIVATE    WRITINGS  §  383 

383.  CONSTRUCTION  OF  WRITINGS. 

(a)  It  is  the  duty  of  the  court  to  give  construction  to  all 
written  instruments;  and  it  is  the  duty  of  the  jury  to  take 
the  construction  from  the  court  absolutely  if  there  are  no 
words  to  be  construed,  as  words  of  art,  or  j)hrases  used  in 
commerce,  and  no  surrounding  circumstances  to  be  ascer- 
tained, or  conditionally,  wlien  those  words  or  circumstances 
are  necessarily  referred  to  them. 

IMonnett  v.  Monnett.  40  O.  S.  30,  .-^T. 

Dock  Co.  V.  McCafferty,  5  C.  D.  262,  11  C.  C.  457. 

Pollock   V.  Colicn,  32   ().   S.  514. 

Bofrps   V.   Taylor,   2(1   ().   S.   (;()4. 

Dayton    v.    Hooghinfl,   3!)   O.   S.   671. 

(b)  Interpretation  of  a  written  contract  is  for  the  court. 

And  where  an  issue  is  made  on  the  question  whether  certain 

items  are  provided  for  in  a  written  contract,   it  is  error  for 

the  court  to  instruct  the  jury  to  determine  that  fact  from  an 

inspection  of  the  contract.     In  construing  a  verbal  contract, 

the  jury  first  decides  upon  its  terms. 

Kt'ipcr  V.  'Sclfo,  22   C.   C.    (N.R.)    507. 
Akron-Selle   to.    v.   .lost,    16    C".    ('.    (N.S.)    .333. 
Lcc  V.  Benedict,  23  C.  C.    (N.S.)   561. 

(c)  If  it  appears  upon  the  face  of  a  mortgage  that  it  is 
void,  or  the  same  is  fairly  to  be  inferred  from  its  provisions, 
it  is  the  duty  of  the  court  so  to  declare  without  submitting 
the  matter  to  the  jury  as  a  question  of  fact.  And  when  the 
notice  to  an  indorser  is  in  writing  and  undisputed,  its  suf- 
ficiency is  a  question  of  law  to  be  determined  by  the  court. 

Freeman  v.  Rawson,  5  0.  S.   1. 
Townsend   v.   Bank,   2    0.    S.   345. 


CHAPTER  XXVI. 
ACCOUNT-BOOKS. 

384.  Common-law  rule. 

385.  Statutory  rule. 

386.  Original  entries. 

387.  Subjects  of  bootc-afcojint. 

388.  Parol  to  vary  accounts. 
389  Book-accounts  of  others. 

390.  Accounts  not  in  books. 

391.  Business  entries. 

384.  COMMON-LAW  RULE. 

(a)  It  is  a  general  nile  of  evidence  that  a  party  will  not 
be  allowed  to  introduce  in  evidence  written  statements  made 
by  himself,  as  such  statements  are  ordinarily  self-serving;  but 
a  book  account  is  an  exception  to  this  rule.  However,  some 
preliminary  proof  is  necessary  to  make  an  account-book  com- 
petent evidence. 

If  a  party  brings  an  action  on  an  account,  his  own  testi- 
mony is  the  highest  and  best  evidence  that  can  be  offered  of 
the  facts  set  forth  in  the  petition,  or  the  testimony  of  the  wit- 
ness who  had  the  transaction  with  the  adverse  party,  or  who 
performed  the  work,  or  who  delivered  the  material,  as  the 
case  may  be.  The  fact  that  the  transactions  were  recorded  in 
a  book  is  merely  corroborative.  If  the  transactions  were  re- 
corded at  the  time,  and  if  the  person  who  recorded  them 
testifies  that  he  recorded  them,  and  that  they  were  truthfully 
recorded,  the  book  may  be  received  in  evidence,  not  independ- 
ently of  the  testimony  of  the  witness,  but  in  connection  with 
his  testimony. 

Bennett  v.  Shaw,  5  C.  D.  480,  12  C.  C.  574.  576. 

(b)  The  general  common-law  rule  requires  that  the  entries 
shall  be  contemporaneous  with  the  facts  to  which  they  relate, 
and  shall  be  made  by  parties  having  personal  knowledge  of 
the  facts,   and  be   corroborated  by  their  testimony,   if  living 

474 


475  ACCOUNT-BOOKS  §  385 

and  accessible,  or  by  proof  of  their  handwriting  if  dead,  or 
insane,  or  beyond  the  reach  of  the  process  or  commission  of 
the  court. 

Kennedy  v.  Dod^re,  10  C.  D.  SfiO,  10  C.  C.   125,  433. 

Cf.  Cram   v.  Sjjear,  8  Oh.  4!)4,  400. 

(c)  The  books  of  original  entry  are  competent  evidence 
for  the  plaintiff  when  the  entries  therein  are  verified  by  the 
evidence  of  the  person  Avho  made  them.  And  a  i)arty  will 
not  be  excused  from  making  the  proof  necessary  in  his  case, 
because  he  would  have  to  do  so  by  a  witness  who  had  been 
called  by  the  adverse  party,  on  the  assumption  that,  if  called 
to  verify  the  account,  the  wntness  would  testify  falsely. 

Bennett  v.  Shaw,  12  C.  C.  574,  5  C.  T>.  480. 

(d)  A  book  account  sued  on,  with  the  oath  of  plaintiff  as 
to  its  correctness,  may  be  attacked  by  asking  plaintiff  on 
cross-examination  whether  he  had  not  made  many  mistakes  in 
his  accounts  within  the  past  tAvo  years  which  he  Avas  com- 
pelled to  rectify,  and  by  evidence  of  his  customers  that  he 
kept  incorrect  accounts,  and  that  the  reputation  of  his  books 
among  them  was  bad. 

Sheridan  v.  Tenner,  3  C.  D.   10,  5  C.  C.   19. 

385.  STATUTORY  RULE. 

(a)  The  present  statute  provides  that  a  party  shall  not 
testify  where  the  adverse  party  is  a  guardian  or  trustee, 
executor  or  administrator,  etc. ;  but  by  the  sixth  paragraph  of 
exceptions  to  this  statute,  a  book  account  is  made  an  excep- 
tion in  words  as  follows:  "If  the  claim  or  defense  is  founded 
on  a  book  account,  a  party  may  testify  that  the  book  is  his 
account-book,  that  it  is  a  book  of  original  entries,  that  the 
entries  therein  Avere  made  l)y  himself,  a  person  since  deceased, 
or  a  disinterested  person  not  a  resident  of  the  county.  The 
book  shall  then  be  competent  evidence,  and  may  be  admitted 
in  evidence  in  any  case,  without  regard  to  the  parties,  upon 
like  proof  by  any  competent  witness." 

See  Section    114ft.'),  Ceneral   Code. 

See  Section  271   el   seq.  herein. 


§  385  METZLER'S    OHIO    TRIAL    EVIDENCE  476 

(b)  Therefore,  the  statutory  rule  is  that  where  a  party 
sues  on  an  account,  his  account-book  is  competent  evidence 
against  the  debtor,  or  his.  legal  representative,  Avhen  it  is 
testified  by  the  party,  or  by  any  competent  witness,  that  the 
book  is  the  account-book  of  the  party,  tliat  it  is  a  book  of 
original  entries,  that  the  entries  therein  were  made  by  him- 
self, or  by  a  person  since  deceased,  or  by  a  disinterested  per- 
son not  a  resident  of  the  county. 

Bennett  v.  Shaw,  5  C.  "D.  4S0.  12  C.  C.  r,:4,  577. 

(c)  In  order  to  make  an  account-book  competent  evidence 
under  this  section  of  the  statute,  it  must  be  shown  not  only 
that  the  book  is  one  of  original  entries,  but  also  that  the 
entries  Avere  made  concurrently  with  the  transactions,  that 
the  items  of  the  account  are  proper  subjects  of  a  book  ac- 
count, and  that  the  book  fulfills  all  the  requirements  of  an 
account-book  at  common  law. 

Kennedy  v.  Dodge,  10  C.  "D.   Hfin,   10  C.  C.   425. 
Bo-art  V.  Cox,  4  C.  C.  28!),  2  C.  T).  ry'y]. 
Page  V.  Zehring,  6  Bull.  2!)n,  S  O.  T>.  11.  211. 

(d)  An  entry  of  a  large  sum  of  money  as  a  loan,  such  as 
$450.00  by  a  laborer  to  his  employer,  is  not  the  proper  sub- 
ject of  a  book  account;  and  in  an  action  against  the  employ- 
er's administrator  by  the  lender,  not  on  the  item  as  an  ac- 
count, but  for  money  lent,  he  can  not  introduce  such  entry  in 
evidence  under  the  statute;  and  the  lender  is  excluded  as  a 
witness  by  reason  of  the  fact  that  the  adverse  party  is  an 
administrator. 

Page  V.  Zehring,  6  Bull.  200,  8  0.  D.  "R.  211. 
See  Cram  v.   Spear,  8  Oh.  404. 
Hough  V.  Ilenk,  8  C.  C.  354,  4  C.  D.  00. 

(e)  In  an  action  against  the  administrator  of  the  estate  of 
a  deceased  person  on  an  account  for  boarding  the  decedent, 
the  plaintiff  testified  that  a  book  then  produced  by  him  was 
his  book  of  original  entries;  that  the  entries  therein  were 
made  by  himself,  and  at  the  time  they  purported  to  have 
been  made.  The  account  in  the  book  showed  entries  of  credit 
of  cash  and  groceries  entered  during  each  year  from  the  com- 
mencement of  the  account,  under  the  heading  of  the  months. 


477  ACCOUNT-BOOKS  §  386 

Lilt  not  giving  the  date;  and  after  the  expiration  of  each  j'ear, 
■without  any  date,  there  Avere  charges  for  boarding  for  the 
number  of  Aveeks  in  the  preceding  year,  some  for  less  than 
fifty-two  Aveeks,  and  a  balance  "svas  struck  for  such  years,  but 
this  balance  was  not  carried  forward  to  the  next  year.  It 
Avas  held  that  such  account-book  was  not  competent  evidence 
under  the  foregoing  statute. 

Bojrart  v.  Cox,  4  C.  C.  2S0,  2  C.  [).  ,nol. 

See   lIcGowan  v.  Mock,   26  Bull.   265. 

386.  ORIGINAL  ENTRIES. 

(a)  The  book  of  original  entries  must  be  produced.  Where 
the  testimony  fails  to  show  that  an  account-book  offered  in 
evidence  is  a  book  of  original  entries,  it  is  not  error  to  exclude 
the  book.  An  impression  book  in  which  are  copied  bills  for 
lumber  drawn  off  from  a  yard-book  is  not  competent  evidence 
as  a  book  of  original  entries  and  should  be  excluded,  when 
identified  only  by  the  person  keeping  this  book,  but  who 
took  no  part  in  keeping  the  yard-book. 

Cram  v.  Spear,  8  Oli.  494. 

Baxter  v.   Leitli,  28  0.  S.  84. 

Falardean   v.  Smith  Co.,  13  C.  C.   (X.S.)   208,  21   C.  D.  649. 

(b)  A  book  account  should  be  proved  by  the  day-book, 
and  not  by  the  ledger  into  which  the  account  has  been  tran- 
scribed from  the  day-book.  It  is  usual,  however,  to  require 
the  production  of  tlie  ledger  even  when  the  original  entries 
are  made  in  a  day-book. 

Kennefly  v.  Dod^re^  10  C.  "D.  360,  10  C  C.  425,  4.3.'5. 
Cram   v.   Si)ear,  8  Oh.   404. 

(c)  The  ledger  is  competent  evidence  of  an  account  when 

the  day-book  has  been  destroyed  or  lost,  and  it  is  shown  that 

the  entries  in  the  day-book  were  correctly  transcribed  to  the 

ledger.     There  should  be  testimony  by  the  person   who  made 

the  entries  in  the  day-book  or  by  one  having  knowledge  of 

the  transactions  and  of  the  correctness  of  the  original  entries, 

Kennedy  v.  Dodpe,  10  C.  D.  .-^fiO.  10  C.  C.  425. 
Burr  V.  Sliute,  2  C.  C.    (N.S.)  343,  14  C,  ]).  62. 

(d)  After  proof  by  the  plaintiff  of  the  loss  of  his  account- 
book  of  original  entries,  it  was  held  not  to  be  error  to  allow 


§  387  METZLER'S    OHfO    TRIAL    EVIDENCE  478 

a  witness  to  testify  that  he  had  compared  tlie  bill  of  particu- 
lars with  the  entries  in  such  account-book  and  that  he  found 
them  to  correspond,  and  then  to  permit  the  plaintiff  to  testify 
to  the  correctness  of  tlie  charges  in  the  account  in  the  lost 
book. 

Smiley  v.  I")(>\voy,   17  <^>li.   l')*!. 

(f.   Mend   v.   :\Ic(;ra\v,    1!)  O.    S.  55. 

(e)  The  entries  should  be  made  concurrently  with  the 
transactions.  Entries  made  but  once  a  year  for  the  whole 
year  for  services  at  so  much  a  week  for  ten  years  is  not  ad- 
missible because  not  contemporaneous  and  not  itemized ;  but 
the  error  is  cured  by  proof  that  the  debtor  often  saw  and 
assented  to  the  entries. 

Bogart  V.  Cox,  4  C.  C.  2S9,  2  C.  D.  551. 

(f)  Where  a  party  proved  by  a  third  person  that  a  book 
is  his  book  of  accounts,  and  there  was  no  testimony  as  to  Avho 
made  the  entries,  but  the  witness  testified  that  the  plaintifi' 
and  defendant  had  compared  their  books  and  found  no  differ- 
ence as  far  as  was  noticed  by  the  witness,  who  was  then 
engaged  about  his  own  duties  posting  other  books,  it  is  not 
error  to  exclude  the  book,  as  the  circumstances  were  not  suf- 
ficient to  justify  an  inference  that  the  correctness  of  the 
account  had  been  admitted. 

Kiigler  V.  Wiseman,  20  Oh.  301. 

Cf.  Hallock   V.  State,   11   Oli.  AOQ. 

Beokwith  v.  Telephone  Co.,   17   C.  C.    (N.S.)  527. 

387.  SUBJECTS  OF  BOOK-ACCOUNT. 

(a)  The  law  alloAvs  a  party  to  swear  to  his  book  accounts ; 
but  this  means  only  the  usual  and  proper  books  of  account. 
Money  is  not  the  proper  subject  of  book  account,  especially 
sums  of  considerable  amount;  though  small  sums  passing  be- 
tween the  parties  in  the  course  of  business  can  be  charged  on 
account,  and  be  proved  in  the  same  manner  as  the  other  items 
of  account. 

Cram  v.  Spear,  8  Oh.  404. 

nongh  V.  Henk,  8  C.  C.  354,  4  C.  D.  60. 

Page  V.  Zehring,  6  Bull.  299,  8  O.  D.  R.  211. 

Horning  v.  Poyer,  18  C.  C.  732,  G  C.  D.  370. 


479  ACCOUNT-BOOKS  §  387 

(b)  Where  a  note  has  been  given  for  a  loan  of  money  and 
payments  have  been  made,  these  payments  should  appear  upon 
the  note.  Such  payments  are  not  the  proper  subject-matter 
of  a  book  account,  and  such  account  is  not  admissible  in  de- 
fense to  an  action  upon  the  note. 

Kennedy  v.  Dodge,  10  C.  D.  300,  10  C    C.  425. 

(c)  Where  a  petition  on  an  account  in  tlie  short  form  is 
filed,  and  it  is  alleged  that  the  cash  items  therein  were  made 
the  subject  of  such  account  with  the  assent  or  by  the  agree- 
ment of  the  debtor,  it  is  not  open  to  objection  by  demurrer 
or  motion,  on  the  ground  that  said  cash  items  are  not  the 
proper  subject  of  a  book  account. 

McKemy  v.  Goodall,  1  C.  C.  23,  1  C.  Tj    14. 

(d)  The  objection  that  cash  items  alone  can  not,  without 
special  authority,  be  the  subject  of  a  book  account,  is  not  well 
taken  where  the  action  is  on  a  contract,  and  there  is  an  aver- 
ment in  the  petition  that  the  indebtedness  arose  "for  money 
laid  out  and  expended  and  commissions  in  the  purchase  and 
sale  of  goods  by  the  plaintiff  for  the  defendant  at  his  re- 
quest. ' ' 

Norman   v.  Plumb,   12  C.   C.    (N.8.)    4S3,   21   C.  "D.  60.5. 
Cf.  McKemy  v.  Goodall,  1  C.  C.  23,   1   C.  D.   14. 
Mc'C'rea   v.    Sprinkler   Co...   Tddings    103. 

(e)  Where  goods  are  delivered  on  a  special  contract,  the 
dealings  can  not  be  the  subject  of  book  account;  and  the  book 
is  not  admissible  to  prove  the  alleged  contract  or  its  execu- 
tion. But  where  the  special  contract  is  wrongfully  terminated, 
the  rule  seems  to  be  that  suit  may  be  brought  on  an  account, 

Baxter  v.  Leith,  28  0.  S.  S4,  90. 
Ralston  v.  Kohl,  30  O.  S.  92. 

(f)  And  an  action  may  be  brought  on  account  where  there 
is  a  special  contract,  if  the  contract  had  been  fully  performed, 
or  if  additions  or  modifications  have  been  sanctioned  by  the 
adverse  party.  In  such  a  case,  indebitatus  assumpsit  would 
lie,  or  the  plaintiff  may  elect  to  plead  specially. 

Cincinnati  v.  Cameron,  33  O.   S.  330,  35G. 


^  389  METZLER'S    OHIO    TRIAL    EVIDENCE  480 

(g)   The  memoranda  on  the  stub  of  a  cheek-book  are  not 

a  book  account  which  a  party  may  swear  to.     The  same  rule 

applies  to  the  stubs  in  a  party's  note-book.     Such  stubs  are 

not  competent  as  a  book  account  or  to  prove  the  purpose  and 

effect  of  the  promissory  notes  given. 

Wilson   V.   Goodin,   Wright   210. 

Watts  V.  Shewell,  31   0.   S    :?:]1,  335. 

Mill  Co.  V.  Hazen,  20  C    C.  287,  11  C.  D.  54. 

388.  PAROL  TO  VARY  ACCOUNTS. 

(a)  If  the  plaintiff  sues  two  persons  .jointly  on  an  account 

for  goods,  he  may  offer  in  evidence  his  books  to  show  that  the 

goods   were    charged    to    both,    although    defendants   had   no 

knowledge    of    the    entry.      But    if    there    is    but    one    debtor 

charged,  the  plaintiff  will  not  be  allowed  to  testify  that  there 

are  two,  for  this  would  be  contradicting  his  accounts. 

McGee  v.  Orcran  Co.,  2  C.  L.  R.  219,  4  0.  D,  "R.  481. 
Richardson  v.   Wingate,   10  W.   L.  J.   115.   1  0.  D.  R.  478. 
Cf.  Bldg.  Assn.  v.  Hayes,  2  C.  C.  225.  1  C.  J).  450. 

(b)  Where  a  sworn  statement  of  an  account  is  filed  to  give 
notice  of  a  mechanic's  lien,  and  the  affidavit  states  that  the 
annexed  account  is  a  true  and  correct  itemized  statement  of 
the  amounts  and  values  of  the  labor  performed  and  materials 
furnished  at  the  times  therein  mentioned,  and  the  last  date 
therein  mentioned  is  more  than  four  months  before  the  filing 
of  the  affidavit,  the  creditor  will  not  be  allowed  to  show  by 
parol  that  the  statement  of  the  account  is  incomplete. 

Macklin  v.  Gas  Engine  Co.,  13  C.  C.   (N.S.)   94,  22  C.  D.  16 

389.  BOOK-ACCOUNTS  OF  OTHERS. 

(a)  Where  the  question  was  whether  or  not  defendant 
gave  plaintiff  a  note  on  settlement  of  accounts,  and  the  evi- 
dence of  two  witnesses  was  adduced  to  show  that  the  account- 
books  of  defendant  had  been  adjusted  with  the  plaintiff,  Avho 
then  admitted  the  correctness  of  the  account,  the  book  was 
allowed  to  go  to  the  jury  as  evidence  of  the  extent  and  nature 
of  the  admission.  The  account-book,  whether  kept  by  plain- 
tiff or  another,  whether  within  or  beyond  his  control,  was  the 


481  ACCOUNT-BOOKS  §  389 

best  evidence  of  its  own  contents,  and  better  than  the  recol- 
lection of  any  person. 

Halleck  v.  State,  11  Oh.  400. 

Cf.  Kugler  v.  Wiseman,   20  Oh.  3G1. 

(b)  On  the  trial  of  an  officer  of  a  city  and  a  member  of  a 
firm  for  presenting  a  false  claim  to  the  city,  whereby  $249 
was  collected  by  defendants  from  the  city  and  only  $49  was 
paid  to  the  firm,  the  books  of  account  of  the  firm  are  ad- 
missible to  show  that  the  bill  was  only  $49,  when  it  is  shown 
that  there  was  a  conspiracy  between  the  defendants  to  per- 
petrate the  fraud,  even  though  the  other  members  of  the  firm 
had  no  knowledge  of  the  plan. 

Davis  V.  State.  20  C.  C.  430,  10  C.  D.  738. 

(c)  The  cash-book  of  a  firm  is  admissible  to  prove  that  a 
man  as  trustee  for  his  wife  had  paid  his  wife's  debt  to  the 
partnership ;  and  he  will  be  entitled  to  credit  for  the  amount 
as  trustee.  The  fact  that  the  husband  had  been  a  member  of 
the  firm,  and  had  since  died,  does  not  change  the  rule.  The 
cash-book  is  admissible  under  the  statute. 

Miller  v.  McLean,  21  C.  D.  64,  11  C.  C.   (KS.)   424. 

(d)  If  a  firm  has  been  dissolved  and  one  member  has 
taken  over  all  the  assets  and  assumed  all  the  liabilities  of  the 
partnership,  the  account-books  of  the  firm  are  admissible  in 
favor  of  such  member;  or,  if  he  made  the  entry,  he  may  re- 
fresh his  memory  from  the  book  and  testify  without  offering 
the  book  in  evidence. 

Miller  v.  Sands.  23  C.  C.  (N.S.)   483. 

See  Spitzi;:  v.   Ki.irinoeriiii,'  Co.,  21  C.  C.   (N.S.)    34S. 

(e)  Where  entries  arc  made  by  a  landlord  in  a  })ass-book 

in  the  possession  of  the  tenant,  containing  an  account  for  rent, 

and  the  book  is  returned  to  the  tenant,   it   will   he  presumed 

that   the   tenant    had   knowledge   of   the   entries;   and,   in   the 

absence  of  proof  to  the  contrary,  he  is  boniul  thereby.     The 

transaction  between  landlord  and  tenant  may  be  such  as  to 

authorize  the  tenant  to  keep  an  ordinary  book  at5count. 

Heipley  v.  Green,  7  0.  D.  497. 
Harrison  v.  Ohmer,  Lldini's  132. 


§  391  METZLER'S   OHIO   TRIAL    EVIDENCE  482 

390.  ACCOUNTS  NOT  IN   BOOKS. 

(a)  Under  an  early  statute,  an  account  was  required  to  be 

kept  in  a  book.    A  tally  on  a  board,  or  a  slate,  or  loose  sheets 

of  paper  was  held  not  to  be  a  book  account.     In  a  ease  where 

an  account  on  a  single  piece  of  paper  was  offered  in  evidence, 

it  was  shown  that  it  was  a  page  of  an  account-book  torn  out 

by  mistake  or  accident,  and  the  page  was  then  admitted  as 

part  of  the  book. 

Kennedy  v.  Ankrim,  Tappan  40. 

Eichardson  v.  Winjiate,   10  W.  L.  J.   145,  1   O.  D.  R.   478. 

Allen  V.  Davis,  Tappan  HO. 

See  Black  v.   Chesser,  12  O.   S.   021. 

(b)  But  sales  slips,  even  if  they  are  not  a  book  account, 
may  be  admitted  as  original  entries  made  in  the  usual  course 
of  business.  Sales  slips  are  admissible  when  they  are  posted 
by  carrying  forward  the  total  from  one  slip  to  another,  so 
that  the  aggregate  upon  the  final  slip  embraces  the  amount 
of  all  items  on  all  the  slips,  and  no  otlier  account  is  kept  of 
the  transactions.  But  a  balance  on  the  first  slip  obtained  from 
a  prior  slip  since  destroyed  is  not  admissible. 

O'Brien  v.  Westgate  Co.,  22  C.  C.    (N.S.)  261. 

391.  BUSINESS  ENTRIES. 

(a)  Where  an  entry  was  made  in  an  account-book  of  origi- 
nal entries,  or  in  the  usual  course  of  business,  and  the  witness 
testifies  that  the  entry  was  made  by  him  at  a  time  when  the 
event  recited  therein  was  fresh  in  his  mind  and  is  correct, 
such  entry  is  admissible,  even  though  the  witness,  after  read- 
ing it,  testifies  that  he  has  no  recollection  of  the  facts  therein 
stated. 

Traction  Co.  v.  Hr.ckett.  6  O.  App.   07,  28  O.   C.  A.  566,  30  C.  D.  208. 
See  Section  171  herein. 

(b)  Where  a  witness  truly  made  the  entries  in  a  freight- 
book  of  a  railroad  company,  on  the  day  the  entries  purport  to 
have  been  made,  in  the  regular  course  of  business,  including 
an  entry  of  a  particular  shipment  in  question,  the  freight- 
book  is  admissible  in  evidence,  Avith  the  oath  of  the  witness 
showing  these   facts,   although,   at   the   time   of  testifying,  he 


483  ACCOUNT-BOOKS  §  391 

has  no  recollection  of  the  particular  shipment,  or  of  anything 
of  the  date  of  its  entry,  and  although  his  memory  is  not  re- 
freshed  by   the   book,    and   he   knows   nothing   of   the   matter 
except  as  he  sees  it  in  the  book, 
iloots  V.  State,  21  O.  S.  653. 

(c)  And  where,  in  transferring  goods  from  one  car  to  an- 
other, "check-slips"  were  made  in  the  regular  course  of  busi- 
ness, showing  the  number  of  the  cars  and  the  descriptive 
marks  of  the  goods,  such  "check-slips''  are  admissible  in  evi- 
dence, with  the  testimony  of  the  witness  shoAving  that  they 
were  truly  made  by  him.  and  that  the  goods  were  marked  and 
shipped  as  thereby  indicated,  the  witness  then  having  no  other 
recollection  of  the  transaction  in  question. 

Rhriedley  v.  State,  23  O.  S.  130. 

(d)  An  appraisement  is  admissible  as  proof  of  its  contents 
in  an  action  several  years  after  it  was  made,  when  one  of  the 
appraisers  testifies  that  he  is  unable  to  state  from  memory 
the  values  of  the  assets  of  the  estate,  but  knows  that  such 
values  as  set  down  in  the  appraisement  were  correct. 

Siffler  V.  Eosers,  46  Bull.   190. 

(e)  The    official    stenographer's    shorthand    report    of   the 

former  testimony  of  a  witness  who  has  changed  his  testimony 

may  be  used  for  impeaching  purposes.     The  stenographer  may 

refresh  his  memory  from  his  written  notes,  or  he  may  read 

his  notes  in  evidence  if  he  testifies  that  they  were  correctly 

taken  and  contain  all  the  evidence   on   the  subject,   although 

he  has   no   independent   recollection    of   the   testimony.      If   a 

stenographic  report  is  read  in  evidence,  a  transcript  thereof 

should  be  deemed  to  be  in  evidence,  with  the  privilege  to  the 

opposite  party  of  examining  it  and  cross-examining  upon  it. 

.Tolm  V.  State,  IG  C.  C.    (N.S.)   316. 
IViin.  Co.  V.  Trainer,  5  C.  D.  51!),   12  C.  C.  06. 
Baum  V.   State,  6  C.  C.    (N.S.)    515,   17  C.   D.  569. 
Hutchinson  v.  State,  8  C.  C.   ^N.S.)   313,  IS  C    D.  595. 

(f)  But  where  it  was  not  shown  that  a  certificate  of 
weight,  from  which  a  witness  was  testifying,  was  an  exact 
copy  of  items  from   a  book  of  original   entries  or  had   been 


§391  METZLER'S    OHIO    TRIAL    EVIDENCE  484 

given  in  the  regular  course  of  business  by  one  authorized  to 
do  so,  the  witness  then  having  no  independent  recollection  of 
the  weights,  the  certificate  was  not  allowed  to  go  to  the  jury. 
Emison  v.  Railroad,   12  C.  D.  727. 

(g)  And  where  the  memory  of  a  witness  as  to  an  event 
had  failed,  and  a  memorandum  made  by  him  soon  af.er  the 
event  and  relating  thereto  was  offered  as  substantive  evi- 
dence, his  testimony  having  been  that  it  was  made  by  him, 
but  that  he  had  little  or  no  recollection  of  the  event,  the 
writing  was  not  admitted  for  the  reason  that  it  was  not 
shown  to  have  been  practically  coincident  with  the  event,  and 
because  the  writing  was  one  which  was  procured  in  view  of 
possible  litigation. 

Traction  Co.  v.  Hackett,  G  O.  App    97,  28  0.  C.  A.  566,  30  C.  D.  2GS. 


CHAPTER  XXVII. 

PUBLIC  WRITINGS-LEGISLATIVE  AND 

EXECUTIVE, 

392.  General  principles. 

IVJS.  Acts  of  tlie  legislature. 

3!)4.  Foreign   law. 

31)5.  Federal  records  and   documents. 

3!)G.  State  records  and  documents. 

o!)7.  Articles   of   incorporation. 

3!)8.  County   records  and  documents. 

3!t!).  Municipal   records. 

400.  Records  of  elections. 

401.  Marriage  certificates. 

402.  Notarial  certificates. 

403.  Private   writings  recorded. 

392.  GENERAL  PRINCIPLES. 

(a)  Courts  will  not  compel  the  production  of  the  original 

records   of    any    public    officer;    but    when    produced,    courts 

never  reject  them  as  secondary.     Indeed,  it  is  a  general  rule 

which  admits  of  no  single  exception,  that  originals  are  good 

evidence  when  copies  would  be  admitted. 

King  V.  Kenny,  4  Oli.  79,  83. 
Wolf   V.    Menager,    14    0.    D.    128. 

(b)  A  public  record  of  private  writings  may  be  proved 
by  production.  Where  certified  copies  of  such  records  are 
made  evidence  by  statute,  as  in  the  case  of  the  records  of 
private  writings  in  the  office  of  the  county  recorder,  the 
original  records  may  be  admitted  instead  of  certified  copies. 
The  existence  of  a  record  and  its  contents  can  not  be  more 
satisfactorily  established  by  the  secondary  evidence  of  a  copy 
than  by  the  production  of  the  record  itself. 

Wintlirop   v.   HrimcR,   Wright,    3^10. 
Sl.eelian   v.  Davis,  17  O.  S.  571,  HSO. 
485 


§392  METZLER'S    OHIO    TRIAL    EVIDENCE  486 

(c)  A  statute  making  certified  copies  of  certain  public 
documents  evidence  in  all  courts  and  places  in  this  state 
authorizes  the  admission  of  a  copy  only  when  the  original 
Avould  be  competent.  If  the  original  would  be  incompetent, 
the  copy  would  also  be. 

State  V.  Wells.  11  Oli.  261. 

(d)  A  certified  transcript  of  the  record  of  an  official  bond 
is  conclusive  evidence  of  such  record,  and  prima  facie  evi- 
dence of  the  execution  and  existence  of  such  bond.  But  if 
the  original  bond  is  offered  in  evidence,  proof  of  its  execu- 
tion must  be  made. 

See   Section   4,  General   Code. 

Nevvberger  v.  Finney.   17  C.  C.  •213.  9  C.  D.  720. 

(e)  If  the  law  does  not  require  a  board  to  keep  a  writing 
or  record  of  certain  acts,  parol  evidence  of  such  acts  is  ad- 
missible although  minutes  are  regularly  kept  by  a  clerk. 

Carpenter  v.  State,   12  O.  S.  4'u  . 

Reynolds   v.  Scliweinefus,  27  O.   S.  oil.   320. 

(f)  Sworn  copies  of  public  records  from  another  state 
are  not  evidence  until  it  is  shown  that  the  records  themselves 
are  kept  under  authority  of  law.  A  deposition  of  the  clerk 
of  a  town  in  such  state  that  the  copy  was  correct  was  re- 
jected with  the  copy. 

Richmond    v.    Patterson,    3    Oh.    368. 

See  also  General  Code,  Section   15331    (R.  S.  U.  S,  Sec.   006). 

(g)  The  admission  of  documentary  evidence  does  not  vio- 
late the  constitutional  provision  giving  to  an  accused  person 
the  right  to  confront  the  witnesses.  This  right  is  confined  to 
oral  evidence,  and  does  not  apply  to  public  records  or  other 
instruments  in  writing. 

State  V.  Berry,  13  C.  C.    (X.S.)    206,  22  C.  D.  250. 
Folliard  v.  State,  14  C.  C.   (N.S.)   205,  22  C.  D.  481. 

(h)  Upon  a  plea  of  nul  tiel  record,  the  technical  rules  of 
the  common  law  as  to  variance  between  the  allegations  and 
the  proof  are  not  in  their  strictness  applicable  under  the 
civil  code. 

Bradv  V.  Palmer,  10  C.  D.  27,  19  C.  C.  687. 


487  PUBLIC  WRITINGS  §  393 

393.  ACTS  OF  THE  LEGISLATURE. 

(a)  The  session  laws  published  by  the  state  are  the  com- 
petent and  prima  facie  evidence  of  the  correctness  and  au- 
thenticity of  the  laws  as  therein  printed.  But  where  there 
is  a  variance  or  repugnancy  in  terms  between  the  printed 
copy  of  a   statute   and   the   original   enrolled   act,   the  latter 

controls. 

State   V.   Groves.   SO   0.   S.   351,   350. 

Cf.  State.   e.\  lel..  v.  Price,  4  C.   D.   200.   S   C.   C.   25. 

(b)  When  a  bill  was  passed,  but  was  not  copied  on  the 
journals,  nor  signed  by  the  presiding  officers,  nor  enrolled, 
nor  filed  with  the  secretary  of  state,  nor  published,  it  was 
held  that  a  copy  deposited  in  the  state  library  in  accordance 
with  the  statute  is  not  admissible  as  evidence  of  the  contents 

of  such  bill. 

State,   ex   rel.,    v.   Kiesewetter,    45    0.    S.    254. 
Cf.  Burke  v.  Cincinnati,  8  N.  P.  109,  10  0.  D.  542. 

(c)  Where  the  journals  show  that  a  bill  was  passed,  and 
there  is  nothing  in  them  to  show  that  it  was  not  read  three 
times,  the  presumption  is  that  it  was  so  read;  and  this  pre- 
sumption can  not  be  rebutted  by  proof. 

Miller   V.   state.   3   0.   S.   475,   484. 

See  state,  ex  rel.,  v.  Jones,  22  C.  C.  (;S2,  H  C.  D.  49r,. 

(d)  When  the  question  is  whether  certain  claims  were 
allowed  by  a  two-thirds  vote  of  the  members  of  the  legisla- 
ture as  required  by  the  constitution,  the  legislative  journals 
must  furnish  the  appropriate  evidence. 

Fordvce  v.   Goclman,  20  0.   S.   1. 

Cf.  Backenstoe  v.  State,  2  X.  P.  (X.S.)   ITS,  1  1  O.  D.  5S0. 

(e)  *A  law  shown  by  the  journals  to  have  been  passed  by 
the  proper  majorities  and  duly  signed  by  the  i)residing  officers 
can  not  be  impeached  by  parol  evidence  that  some  of  the 
concurring  members  had  been  seated  on  a  contest  of  election 
by  less  than  a  constitutional  quorum. 

St;itp.  ex  ml.,  V.  Smitli.  44  O.  S.  .148. 

(f)  P)Ut  a  duly  enrolled  bill  may  be  impeached  on  the 
ground   that  it  lias  not  received  a  con.stitutional  majority  of 


§394  METZLER'S    OHIO    TRIAL    EVIDENCE  488 

the  members-elect  of  both  branches  of  the  general  assembly; 
and  upon  this  question  the  legislative  journals  must  provide 
the  appropriate  as  well  as  the  conclusive  evidence. 
Ritzman  v.  Campbell,  93  O.  S.  240. 

(g)  In  Beyer  v,  Burress,  67  0.  S.  500,  the  court  inspected 
the  legislative  journals  and  declared  an  act  invalid  because, 
after  the  bill  had  regularly  passed  both  branches  of  the 
legislature,  a  motion  to  reconsider  was  carried  in  the  house 
and  no  further  action  was  taken. 

Ritzman   v.   Campbell,  03   0.  S.   24G.   200. 

(h)  The  rule  does  not  authorize  an  inspection  of  the  jour- 
nals to  prove  that  a  discrepancy  exists  between  the  bill  as 
enrolled  and  as  shown  by  the  journals.  In  such  cases,  a  duly 
enrolled  bill  is  conclusive  upon  the  courts  as  to  its  contents.. 

Ritzman  v.  Campbell.  0.3  0.  P.  240. 

See  State,  ex  rel.,   v.  Jones.  22  C.  C.  (:S2.    11   C.  D.  40G. 

Cf.  State,  e.x  rel..  v.  Price,  4  C.  D.  290,  8  C.  C.  2.5. 

(i)  The  legislature  elected  a  man  as  judge,  but  his  name 
was  not  recorded  in  the  house  journal  the  same  as  in  the 
senate  journal.  It  was  held  tliat  members  of  the  legislature 
could  not  contradict  the  journals. 

State,  ex  rol.,  v.  Moffitt.  5   Oh.  338. 

394.  FOREIGN  LAW. 

(a)  The  acts  of  the  legislature  of  any  state  or  territory, 
or  of  any  country  subject  to  the  jurisdiction  of  the  United 
States,  shall  be  authenticated  by  having  the  seals  of  such 
state,  territory,  or  country  affixed  thereto. 

See  Section  15330.  G.  C.   (R.  S.  U.  S.  Sec.  90.5). 

(b)  Printed  copies  of  written  law  enacted  by  another 
state,  a  territory  of  the  United  States  or  foreign  government, 
proved  or  purporting  to  have  been  published  by  its  authority, 
or  proved  to  be  commonly  admitted  as  evidence  of  the  exist- 
ing law  in  the  courts  or  tribunals  thereof  respectively,  will 
be  admitted  by  the  courts  and  ot^cers  of  this  state  on  all 
occasions  as  presumptive  evidence  of  such  law. 

See  Section   11498,  General   Code. 

^Yilhelm  v.  Parker,  9  C.  D.  724,  17  C.  C.  234. 


489  PUBLIC    WRITINGS  §394: 

(c)  Notwithstanding  the  Ohio  statute,  the  statute  of  an- 
other state,  limiting  the  jurisdiction  of  a  court  of  that  state, 
was  proved  hy  the  testimony  of  a  person  learned  in  the  law 
who  testified  as  an  expert. 

Brady  v.  Palmor.  10  C.  D.  27.  10  C.  C.  fiS7. 
See  also  Ingraliam  v.  Hart,  11  Oli.  255. 

(d)  The  printed  statutes  of  another  state  purporting  to 
be  i)ublished  by  its  authority  may  be  received  to  show  that 
embezzlement  is  made  a  crime  by  the  laws  of  that  state. 

Ex   parte   Sheldon,   34   0.   S.   319. 

(e)  The  laws  of  another  state  where  they  come  in  ques- 
tion in  the  courts  of  this  state,  must  be  pleaded  and  proved 
as  matters  of  fact.  If  the  law  under  which  a  right  arises  is 
not  pleaded  and  ])roved,  it  is  said  that  it  will  be  presumed 
that  the  law  of  the  forum  controls  the  rights  of  the  parties. 

Williams  V.  Finlay.  40  0.  S.  342. 

r.ailroad  v.  Welsh,  S!)  O.  S.  81 

\\  iison  V.  Wilson,  8  0.  App.  258,  28  O.  C.  A.  309,  29  C.  D.  393. 

(f)  The  laws  of  a  si.ster  state  conferring  power  upon  its 
couits,  when  the  scope  of  tliat  ])0wer  is  put  in  issue,  becomes 
a  fact  in  issue;  and  it  must  be  sustained  by  proof  like  any 
other  fact. 

Wilhelm  V.  Parker,  9  C.  D.  724,  17  C.  C.  234. 
See  Dodd  v.  Groll,  8  C.  D.  334,  19  C.  C.  718. 

(g)  The  statutes  of  another  state  and  also  any  peculiar 
construction  which  the  courts  of  such  state  may  have  placed 
upon  them,  when  they  come  in  question  here,  must  be  proved 
by  evidence  as  matters  of  fact.  If  such  a  statute  is  intro- 
duced without  evidence  of  peculiar  construction,  the  settled 
construction  of  similar  statutes  will  be  applied. 

Larwell  v.  TTanover  Society,  40  0.  S.  274. 
Smith    V.    r.aitiuiii,    11    O.    S.    {>':(). 

(h)  "Where  it  is  sliown  that  llie  statutes  of  another  state 
are  the  same  as  those  in  Ohio,  it  will  be  presumed  in  the 
absence  of  evidence  on  llic  sMbiect  that  the  decisions  uiuler 
the  statutes  are  the  same  as  in  Ohio. 

Coffinberrv  v.  Plakeslee,  22  C.  C.    (X.S.)    34. 


§395  METZLER'S    OHIO   TRIAL    EVIDENCE  490 

(i)  The  existence,  construction  and  legal  effect  of  for- 
eign statutes  are  rather  matters  of  fact  than  of  law ;  and 
Avhen  they  have  received  an  authoritative  construction  where 
they  were  enacted,  no  inquiry  into  its  correctness  is  allow- 
able. 

Hank   V.    Baker,    15    0.    S.    6R. 

(j)  The  statute  of  limitations  of  another  state  as  a  de- 
fense must  be  proved  like  other  matters  of  fact;  and  where 
the  record  is  silent  on  the  point,  it  will  not  be  presumed  that 
evidence  was  offered  to  prove  it. 

Whelnn   v.   Kinsley,   20   0.   S.    ]?,]. 

J'>arr  v.  Closternian,  2  C.  C.  387,  1  C.  D.  540. 

(k)  The  common  or  unwritten  law  of  such  other  state, 
territory  or  foreign  government  may  be  provetl  as  facts  by 
])arol  evidence.  Books  of  reported  cases  adjudicated  in  its 
courts  may  also  be  admitted  as  presumptive  evidence  of 
such  law. 

See  Section   11400  of  tlie  General   Code. 

(1)   Where,  on  the  trial  of  an  issue  respecting  the  law  of 

another   state,    the   decisions   of  the   courts   of   that   state   are 

given  in  evidence  to  the  jury,  it  is  the  province  of  the  jury 

to  determine  whether  or  not  such  decisions  have  been  made; 

l)ut  it  is  the  duty  of  the  court  to  construe  and  deduce  from 

them  the  rules  of  law  which  they  establish. 

Alexander  v.  Penn.  Co.,  48  0.  S.  023. 
Ott   V.  Railway,  10  C.  D.  85.   18  C.  C.  3!I5. 
See   Railroad   v.   Welsh,    89    O.   S.   81. 
Xienaber  v.  Tarvin,  9  O.  D.  501,   7   X.   P.    110. 

395.  FEDERAL  RECORDS  AND  DOCUMENTS. 

(a)  Copies  of  books,  maps,  records,  papers  or  documents 
on  file  or  deposited  in  any  of  the  executive  departments  of 
the  United  States  government,  authenticated  under  the  seal 
of  such  department,  shall  be  competent  evidence  and  have 
like  force  and  effect  as  the  originals. 

See   Section    11500,   General   Code. 

(b)  A  paper  duly  certified  by  the  commissioner  of  pat- 
ents to  be  "a  true  copy  from  the  record  of  that  office  of  the 


491  PUBLIC    WRITINGS  §396 

specifications"  of  a  patent  Avithout  an  authenticated  copy  of 
the  patent  itself,  is  not  competent  evidence.  Letters  patent 
afford  the  best  evidence  of  what  is  covered  by  them. 

Davis  V.  Gray,  17  0.  S.  330. 

Cf.  Strader  v.  Lloyd,    1   W.  L.  J.   30(i,   1   ().   I).  Yl.   :.7. 

(c)  A  certificate  of  the  commissioner  of  patents  of  the 
correctness  of  a  copy  or  translation  from  a  French  volume 
in  the  patent  office,  is  inadmissible  to  prove  the  existence  of 
an  invention  prior  to  plaintiff's.  The  book  itself  or  a  duly 
proved  translation  is  the  only  way  its  contents  can  be  shown. 

Gaylord  v.  Case,  5  A.  L.  R.  404,  5  0.  D.  E.  413. 

(d)  A  condition  in  a  contract  provided  that  it  should  be 
void  if  a  certain  device  is  not  patentable  in  England,  which 
was  required  to  be  shown  by  satisfactory  documentary  evi- 
dence. It  was  held  that  this  means  not  merely  written  evi- 
dence, but  that  kind  which  proves  the  fact ;  that  certificates 
of  experts  that  the  device  was  not  patentable  is  not  such 
evidence. 

Atkins  V.  Ballauf,  1   Dis.  382,   12  0.  D.  K.  684. 

(e)  An  entry  made  by  the  registrar  of  a  land  office  in  the 
tract-book  that  certain  tracts  are  school  lands,  is  prima  facie 
evidence  that  they  were  duly  selected  and  approved  as  such. 

Coombs  V.  Lane,  4  0.  S.  112. 

(f)  The  state  courts  having  no  power  to  compel  the  pro- 
duction of  the  records  of  the  Internal  Revenue  Department ; 
exemplified  copies  are  of  necessity  the  best  evidence  and  are 
competent, 

Folliard  V.  State,   14  C.  C.    (N.S.)   20.-5,  22  C.  D.  481. 

396.  STATE  RECORDS  AND  DOCUMENTS. 

(a)  Copies  of  papers,  books  and  records  on  file  or  depos- 
ited by  virtue  of  law  in  certain  state  executive  offices  and 
county  offices,  when  properly  certified,  are  competent  evidence 
and  have  like  force  and  effect  as  the  originals. 

See    Section    11500,    General    Code. 


§  396  METZLER'S    OHIO   TRIAL    EVIDENCE  492 

(b)  An  entry  in  a  record  kept  in  the  governor's  office,  as 
required  by  law,  to  record  the  ])resentation  of  bills,  is  suf- 
ficient to  prove  a  presentation.  Parol  evidence  to  contradict 
such  an  entry  is  not  admissible.  And. evidence  will  not  be 
received  to  show  that  no  official  proceedings  w^ere  had  or 
taken  by  the  governor  for  ten  days  after  presentation  of  a 
bill. 

W'rede  v.  Tlichardson,  77  0.  S.  1R2. 

(c)  The  statute  which  made  evidence  the  certified  copies 
of  the  files  of  the  auditor  of  state,  authorizes  the  admission 
of  such  copies  only  when  the  originals  would  be  competent. 
And  these  originals  would  not  be  competent  if  there  is  better 
evidence  in  the  office  of  the  county  auditor. 

State    V.    Wolls,    H    Oh.    261. 

(d)  In  an  action  by  the  state  for  the  recovery  of  canal 

lands,  it  is  proper  for  the  state  to  introduce  in  evidence  the 

specifications  and  rules  for  the  construction  of  canals  so   as 

to    show    the    dimensions    of    the    canals    and    banks;    but    an 

epitome  of  the  same  prepared  by  the  canal  commission  is  not 

competent  evidence.     An  officer  was  not  allowed  to  testify  as 

to   what   appeared  on   the  books,   because  the   books   are   the 

best  evidence  of  w^hat  they  contain. 

State  V.  Japan   Co.,   6G  0.   S.   1R2. 
State  V.   Perry,   Wriglit,   662. 

(e)  Leases  of  surplus  canal  water  and  connecting  lands, 
which  were  deposited  with  the  board  of  public  works  and 
recorded  in  a  book  provided  for  that  purpose,  were  provable 
by  copies  certified  by  the  president  of  the  board. 

Emmitt  v.  Lee,  50  0.  S.  662. 

(f)  Sworn  copies  of  estimates  of  public  works  from  the 
register  in  the  office  of  the  resident  engineer  are  competent 
evidence,  where  it  is  provided  by  contract  that  such  engineer 
shall  make  estimates  of  work  done,  upon  which  payments 
shall  be  made.  The  register  was  made  up  from  reports  by 
assistants ;  but  it  was  held  that  it  was  a  record  and  was 
made  up  like  all  records. 

Lyon    V.    McCadden,    15    Oh.    551. 


493  PUBLIC    WRITINGS  §  "^93 

(g)  A  certified  copy  of  the  record  of  a  birth  or  doatli 
registered  under  the  statutes  relating  to  vital  statistics, 
-when  properly  certified  by  the  state  registrar  to  be  a  tru" 
copy  thereof,  shall  be  prima  facie  evidence  in  all  courts  and 
places  of  the  facts  therein  stated. 

See  Section  231,  General  Code. 

397.  ARTICLES  CF  INCORPORATIOM. 

(a)  On  the  trial  of  an  issue  of  nul  tiel  corporation,  a 
certificate  of  incorporation  may  be  rejected  as  evidence,  un- 
less  the  corporation  shows  fulfillment  of  conditions  precedent 
required  by  the  law  under  which  it  was  formed. 

Navigation  Co.  v.  Eagle,  20  0.  S.  238. 

(b)  "When  one  of  the  issues  is  whether  the  defendant  is 
a  corporation,  the  affidavit  to  the  answer  purportnig  to  be 
made  by  the  superintendent  of  the  defendant,  "a  corpora- 
tion," is  not  the  best  evidence. 

Packet  Co.  v.  Fogarty,  0  C.  C.  418.  6  C.  D.  3".". 

(c)  In   a   prosecution   for   an    offense   against   a    railroad 

company,    its    corporate    character    is    sufficiently    shown    by 

proof  that  it  Avas  at  the  time  a  corporation  de  facto,  or  by 

proof  that  it  assumed  and  notoriously  exercised  the  franchise 

of  a  corporation, 

Burke  v.  State,  34  0.  S.  79, 
Murpiiy    V.   State,   36   0.   S.   628, 
Calkins   v.  State,   18   0.   S.   306. 

(d)  On  an  indictment  for  having  in  possession  fake  and 
counterfeit  bills  on  a  foreign  bank  with  intent  to  barter,  the 
state  is  not  bound  to  prove  it  to  be  an  incorporated  bank  by 
the  production  of  its  charter.  The  existence  of  the  bank  may 
be  shown  by  reputation. 

Sasser    v.    State,    13    Oh.    4.'i3. 
See  Reed  v.  State,   15  Oh.  217. 

398.  COUNTY  RECORDS  AND  DOCUMENTS. 

(a)  The  county  commissioners  are  entitled  to  the  custody 
of  their  own  records  and  can  not  be  comi)elIed  to  produce  the 
originals  in  court;  but  when  presented  they  are  as  good  evi- 


^  398  METZLER'S    OHIO    TRIAL    EVIDENCE  494 

denco  as  copies  authenticated  in  the  most  ample  forms  of 
law.  And  \vhere  the  proceedings  of  the  commissioners  in 
laying  out  a  road  ^vere  not  recorded  as  required  by  law,  the 
minutes  of  the  board,  the  original  report  of  the  reviewers 
and  the  plat  were  admitted  in  evidence. 
King   V.   Kenny,   4   Oh.   79,    S3. 

(b)  The  record  of  the  county  commissioners  establishing 
a  road  is  only  prima  facie  evidence;  it  may  be  impeached  by 
showing  that  no  notice  had  been  given  and  that  the  petition 
for  the  road  was  not  signed  by  the  number  of  freeholders 
required  by  statute.  But  evidence  to  show  an  agreement  to 
vacate  the  road  entered  into  between  the  commissioners  and 
a  landowaier  wnll  not  be  admitted. 

Anderson  v.  Commissioners,  12  O.  S.  635. 
Corry  v.  Gaynor,  22  0.  S.  584. 
See  Stolz  v.  Selz,   12  O.  D.  664. 
See  Beebe  v.  Scheidt,  13  O.  S.  406. 

(c)  Where,  after  a  lapse  of  nearly  a  quarter  of  a  century, 
the  question  was  whether  a  road  had  been  vacated,  the  court 
said  it  will  be  presumed  that  the  record  Avas  made  and  lost, 
and  that  the  vacation  was  provable  without  the  record. 

Ingersoll  v.  Herider,  12  Oh.  527,  542. 

(d)  The  minutes   of  a   taxing  board   are   not   conclusive, 

and  the  real  facts  may  be  shown  by  parol  unless  otherwise 

provided  by  statute.     Neither  is  the  tax  duplicate  conclusive 

as  to  the  verity  of  its  ow^n  record.     Parol  evidence  will  be 

received  to  correct  errors  on  the  duplicate. 

State,  ex  rel..  v.  Aldridge,  66  0.  S.  508. 
Lewis  V.  State,  e.x  rel.,  59  0.  S.  37. 
Desliler   v.   Sims,    14   0.   D.   532. 

(e)  The  record  of  a  board  of  equalization  is  not  conclu- 
sive, but  is  only  prima  facie  evidence  in  an  action  under 
section  12075  of  the  General  Code  by  a  taxpayer  challenging 
the  legality  of  a  tax  or  assessment. 

Hagerty  v.   Hnddleston,   60  O.   S.    149. 

(f)  A  record  of  a  tax  sale  and  entries  on  the  tax  dupli- 
cate in  the   office   of   the   county   auditor  may  be   proved  by 


495  PUBLIC   WRITINGS  §  399 

s-svorn  copies.  The  books  of  the  auditor  are  admissible  to 
prove  entries  in  a  tax  sale,  even  though  the  entries  are  not 
entirely  regular.  And  matters  not  required  to  be  of  record 
may  be  proved  by  oral  evidence. 

Sheldon  v.  Coates,  10  Oh.  278. 

Thevenin   v.   Slociim,    16   Oh.   51!t. 

(g-)  Where  the  statute  does  not  make  a  tax  deed  prima 
facie  evidence,  the  destruction  of  the  auditor's  records  will 
not  create  a  presumption  of  its  validity  nor  excuse  the  fail- 
ure to  produce  other  attainable  evidence.  And  a  tax  deed 
does  not  prove  itself,  and  is  not  admissible  in  evidence  with- 
out proof  of  its  execution  and  its  connection  with  the  land 
in  suit. 

Rhodes  v.  Gunn,  35  0.  S.  387. 

Cf.  Fitzpatriek  v.  Forsythe,  7  A.  L.  R.  412,  6  O.  D.  R.  682. 

Hughes  V.  Lehan,  1  C.  C.  9,  1  C.  D.  5. 

399.  MUNICIPAL  RECORDS. 

(a)  The  printed  copies  of  the  by-laws  or  ordinances  of  a 
corporation,  published  under  its  authority,  and  transcripts  of 
any  by-laws,  resolutions,  or  ordinances,  or  of  any  act  or  pro- 
ceeding of  a  municipal  corporation,  recorded  in  any  book, 
or  entered  on  any  minutes  or  journal  kept  under  the  direc- 
tion of  such  corporation,  and  certified  by  its  clerk,  shall  be 
received  in  evidence  through  the  state,  for  any  purpose  for 
which  the  original  books,  ordinances,  minutes,  or  journals 
would  be  received. 

Section  4235,  General   Code. 

(b)  A  transcript  of  a  duly  recorded  ordinance,  certified 

by  the  city  clerk,  is  sufficient  proof  that  it  was  duly  passed. 

This  can  not  be  proved  by  parol  evidence.     The  certificate  of 

the   clerk   of  the    due   publication    of   the    ordinance    is   also 

sufficient. 

Railroad  v.  Railroad,  5  C.  D.  643,  12  C.  C.  367. 

Railway   v.   Workman,   66   0.   S.   509. 

O'Brien   v.  Cleveland,   1   C.  L.  R.    100.   4   0.  T).  R.   189. 

(c)  Statutory  provision  for  the  maintenance  and  control  of 
a  free  public  hospital  by  a  city,  willi  autlioj-ity  in  tlio  director 


§  399  METZLER'S    OHiO   TRIAL    EVIDENCE  496 

of  public  safety  to  provide  rules  and  regulations  for  its  gov- 
ernment, and  a  rule  requiring  the  receiving  physician  to  make 
a  written  report  of  each  ease  with  his  diagnosis,  renders  such 
a  report  a  public  document  or  record,  and  therefore  admissible 
in  evidence. 

Cassidy  v.  Traction  Co.,  21  N.  V.    (NS.)    125,  20  0.  D.  6. 

(d)  In  an  action  to  recover  for  an  injury  alleged  to  have 
been  caused  by  cars  moving  on  a  railroad  track,  proof  that 
the  company  was  moving  its  cars  in  violation  of  a  city  ordi- 
nance at  the  time  the  injury  was  intlicted,  is  competent  evi- 
dence to  show  negligence.  And  proof  of  such  ordinance  is 
competent  as  reflecting  on  the  degree  of  care  required  of  the 
injured  party  to  avoid  the  injury;  for  he  had  the  right  to  act 
on  the  assumption  that  tlie  company  Avould  conform  to  the 
requirements  of  the  ordinance.  This  case  (88  0.  S.  632)  holds 
that  such  violation  is  not  sufficient  per  se  to  create  a  liability. 
But  'in  later  cases  it  has  been  held  that  a  violation  of  an  ordi- 
nance or  statute  passed  for  the  protection  of  the  public  is 
negligence  iier  se. 

Meek  v.  Ponn.  Co.,  .?S  0.  R.  (i32.  637. 

Allen  V.  Sniitli,  .1  O.  Apj)    284,  27  0.  C.  A.  203. 

DiiBois  V.   Sdiell.  04  0.   S.  93. 

Cf    State  V.   Born,  85  O.   S.  430. 

(e)  Where  the  issue  raised  is  as  to  whether  the  car  which 
caused  the  accident  was  being  operated  at  a  high  and  danger- 
ous rate  of  speed,  in  excess  of  tlie  rate  pi'escribed  in  a  city 
ordinance,  it  is  not  error  to  refuse  to  admit  in  evidence  an 
ordinance  regulating,  the  speed  of  cars  within  the  municipal 
limits,  when  there  is  no  evidence  offered  to  shoAv  the  rate  of 
speed  at  the  time  of  the  accident. 

Furrer  v.  Railway,  7  O.  App.  491,  27  0.  C.  A.  410,  30  C.  D.  200. 

(f)  A  book  of  levels  from  the  city  engineer's  office  is  not 

admissible  to  prove  a  grade  established  by  ordinance.     And 

t"he  city  engineer  may  not  testify  to  the  districting  of  the  city 

for    sewer   purposes ;    such    facts    should    be    proved    by    the 

ordinances. 

Tvailroad  v.  Pfau,  0  Bull.  200.  8  0.  D.  P.  601. 
Cleveland   v.   Beaumont,   4   Bull.   345,  4   0.   D.  B.   444. 


497  PUBLIC   WRITINGS  §400 

(g)  But  an  action  to  enjoin  the  collection  of  a  street  as- 
sessment because  council  did  not  undertake  to  determine  the 
amount  of  special  benefits  conferred,  parol  evidence  can  b-i 
introduced  to  show  that  the  authorities  did  not  act  on  the 
proper  basis. 

Chamberlain  v.  Cleveland,  34  O.  P.  5ol. 

(h)  And  if  the  records  of  a  village  council  or  school  board 
do  not  show  a  contract  of  employment  made  at  a  regular 
meeting,  it  is  competent  for  the  person  contracting  to  prove 
that  a  resolution  had  been  adopted,  but  omitted  from  the 
minutes. 

Drott   V.  Riverside.  2   C.  D.  .'fio.  4   C.  C.  312. 
Dixon   V.   Subdis^trict.  3   C.   C.   517,   2   C.   D.   29S. 

(i)  A  book  containing  entries  of  township  matters  does 
not  prove  itself  as  a  township  record,  but  must  be  identified 
as  such.  And  if  such  record  is  silent  as  to  an  official  act  or 
the  date  thereof,  parol  evidence  is  admissible  to  prove  the 
fact. 

state  V.   Wallahan,   Tappan,   80. 
Ratcliff  V.  Teters,  27  0.   S.  66. 
Albright  V.  Payne,  43  0.  S.  8. 

(j)  A  copy  of  a  bond  of  a  township   officer  certified  by 
the  clerk  of  the  township  shall  be  admitted  in  any  court  in 
this  state  as  evidence  the  same  as  the  original  bond. 
e~ee   Section  330G,  General  Code. 


400.  RECORDS  OF  ELECTIONS. 

(a)  In  the  trial  of  a  contested  election,  the  rule  which 
requires  the  production  of  the  best  evidence  applies  in  re- 
spect to  the  contents  of  poll-books,  tally-sheets  and  the  num- 
ber and  contents  of  ballots  cast  at  the  election,  in  cases  where 
these  are  attainable. 

Sinks  V.  Eeese,   19   0.  S.   300. 

(b)  Poll-books,  tally-sheets  and  returns  .substantially  com- 
plying with  the  statute,  can  not  be  excluded  if  formal  mis- 
takes  and   omissions   are   supplied   by   evidence.      The    record 


§  400  METZLER'S    OHIO    TRIAL    EVIDENCE  498 

can  not  be  impeached  on  the  ground  that  the  vote  in  some 
of  the  townships  can  not  be  judicially  ascertained,  if  no 
illegality  is  found. 

Towers  V.  Reed,   10  O.  S.  181). 

(c)  Poll-books  duly  certified  and  returned  are  prima  facie 
evidence  of  the  truth  of  their  contents,  but  this  presumption 
will  be  rebutted  by  proof  that  they  are  fraudulent  and  ficti- 
tious to  such  an  extent  as  to  render  them  wholly  unreliable. 
AVhere  a  poll-book  is  thus  impeached,  the  burden  of  other- 
wise proving  legal  votes  is  thrown  upon  the  party  claiming 
them. 

riielpn    V.    Scliroder,    2(i    0.    S.    540. 

(d)  The  original  tally  sheet  of  a  municipal  election,  duly 
certified  by  the  officers  thereof,  is,  on  a  proceeding  in  quo 
w^arranto,  prima  facie  evidence  of  the  election  to  the  office  of 
mayor  of  the  person  for  whom  it  shows  a  majority  of  the 
ballots  cast  for  said  oifice  was  given. 

State,  ex  rel.,  v.  Donnewirth,  21   0.  S.   216. 

(e)  In  cases  of  fraud,  accident,  mistake,  misapprehension 
or  negligence,  where  duties  of  a  ministerial  character  in  refer- 
ence to  ballots  cast  are  omitted  by  the  judges  of  elections, 
oral  evidence  is  admissible  to  show  the  true  character  of  the 
ballots  as  to  w-hich  there  is  doubt,  and  to  identify  with  cer- 
tainty the  poll-books  and  tally-sheets. 

State,   ex   rel.,  v.   :\rarkh'y.   0   C.  C.    (X.S.)    .-)lil,   20   C.  D.    li:J. 

(f)  Where  certain  marked  ballots  were  rejected  at  the 
count  and  locked  in  a  box  which  was  delivered  to  the  town- 
ship clerk,  where  they  remained  untampered  with,  it  was 
error  to  exclude  such  ballots  on  trial  of  a  contest ;  and  after 
excluding  them,  it  was  error  to  reject  parol  evidence  as  to 
how  they  had  been  marked. 

State,    ex   rel.,    v.    Patterson..  84   ().    S.   SO. 

Cf.  State,  ex  rel.,  v.  Donnewirth,  21  0.  S.  216. 

(g")  Where  ballots  have  been  destroyed  by  the  judges  of 
election,  oral  testimony  is  admissible  in  a  contest  of  the  elec- 


499  PUBLIC    WRITINGS  §400 

tioii  to  sliow  how  these  ballots  came  to  be  destroyed,  and  for 
■whom  they  were  counted,  aud  how  they  were  marked. 

State,  ex   rc'l.,  v.  ;Mnrkloy,   0   C.  C.    (X.S.)    nc.l.   20  C.  D.   11:1. 

Williams  v.  Barker,  4  N.  P.    (N.S.)    5%,   17  O.   D.  079. 

State    V.   fon-er.  5   C.   C.    (X.S.)    11!).   14  C.   1).   27(1. 

Dittric-k  V.  Kelley,  20  N.  P.   (N.S.)   86,  27  O.  D.  500. 

(h)  The  fact  that  an  election  was  held  under  a  local- 
option  law  and  the  result  thereof,  may  be  established  by  a 
certifieate  as  to  the  result  of  such  election;  and  it  is  not  a 
violation  of  the  constitutioiuU  i)rovision  givin<j  to  an  accused 
])erson  the  right  to  confront  his  witnesses.  Rut  this  certifi- 
cate is  not  exclusive;  and  if  it  should  be  invalid,  the  allega- 
tion that  the  territory  voted  "dry"  may  be  sustained  by 
other  relevant  evidence. 

State  V.  P.erry,   1.3   C.   C.    (X.S.)    200.  22   C.  D.  2.^0. 

Dalrvmple   v.    State,  ?>   ('.  C.    (N.S.)    IS."),    1(1   C.   1).  rMl. 

Lynch    V.    State,    12    C.   ('.    iX.S.)    330,  21    C.   D.   352. 

State  V.  Hinkelnian,  Ki  C.  C.    (N.S.)    321.  22  C.   D.   1. 

(i)  In  case  of  conflicting  certificates  of  election  under  a 
local-option  law  which  were  signed  by  the  same  officers,  parol 
evidence  is  admissible  to  impeach  the  accuracy  of  the  tally- 
sheets  and  to  explain  errors.  The  court  may  go  behind  the 
face  of  the  returns,  and  inquire  into  the  facts  and  correct 
mistakes. 

Smith  V.  Pauh,  14  C.  C.   (N.S.)    33,  22  C.  D.  r,15. 

(j)  The  official  registers  of  electors  of  the  district  are  eom- 
l)etent  as  evidence  in  a  local-option  contest,  and  are  sufficient 
to  make  i)rima  facie  evidence  of  residence  within  the  district 
for  the  requisite  statutory  period. 

In  re  Petition,  7  O.  App.  222,  27  0.  C.  A.  580,  2R  C.  D.  347. 

Dittriek  V.   Kelley,  27  O.  D.  500,  20  N.  P.   (N.S.)   86,  88. 

(k)  A  constable  justifying  his  acts  as  such  may  show  by 
general  reputation  that  he  was  a  de  facto  officer  without  pro- 
ducing a  certificate  of  election.  And  the  same  rule  was 
followed  in  case  of  a  tax  collector, 

.lolinson    V    Stedman,  3   Oh.   04. 

Kldrcd    V.   Sexton,   7,   Oli.   215. 


§402  METZLER'S   OHIO   TRIAL    EVIDENCE  500 

401.  MARRIAGE  CERTIFICATES. 

(a)  A  -writing  purporting  to  be  a  marriage  certificate, 
signed  by  the  minister  who  solemnized  the  marriage,  but  not 
dated,  nor  recorded,  nor  exemplified  in  any  way,  nor  entitled 
to  be  admitted  as  an  ancient  document,  is  not  admissible  in 
a  criminal  prosecution. 

Whalen  v.  State,   12   C.   C.  5S4,  5   C.  T>.  4S8. 

(b)  A  marriage  may  be  proved  by  a  person  present  at 
the  ceremony,  for  the  record  is  not  the  only  evidence  and 
would  not  identify  the  parties.  And  on  an  indictment  for 
bigamy,  the  admissions  of  the  defendant  as  to  the  prior  mar- 
riage may  be  given  in  evidence  to  prove  the  fact  of  such 
marriage;  and  it  is  not  necessary  to  produce  the  record. 

Wolverton  v.  State,   10  Oh.   173,  ITfi. 

Pappalardo  v.  Pappalardo,  6  O.  App.  201,  28  0.  C.  A.  449,  30  C.  D.  285. 

Logan   V.   Gray,   Tappaii,    6!). 

Stanglein   v.    State,    17    0.   S.   4.-)3. 

Cf.  Whalen   v.   State,    12   C.   C.  584,  5   C.  D.   488. 

Bates  V.  State,  19  C.  D.  189,  9  C.  C.    (N.S.)   273,  282. 

(c)  A  transcript  of  the  record  of  a  marriage  in  a  foreign 
country  is  not  competent  prima  facie  evidence  of  the  mar- 
riage therein  recorded,  without  proof  of  the  laws  of  such 
foreign  country  requiring  that  such  record  be  made  and  kept. 

Stanglein   v.   State,   17   0.   S.   4.'53. 

(d)  In  divorce  proceedings,  proof  of  cohabitation  and 
reputation  of  the  marriage  of  the  parties  is  competent  evi- 
dence to  prove  such  marriage ;  and  may  be,  within  the  dis- 
cretion of  the  court,  sufficient  evidence.  This  rule  applies  to 
the  marriage  sought  to  be  dissolved,  and  not  to  a  former  mar- 
riage assigned  as  a  ground  for  the  divorce. 

See  Section   11989,  General  Code. 
Houpt  V.  Iloupt,  5  Oil.  539. 

402.  NOTARIAL  CERTIFICATES. 

(a)  A  regular  statutory  certificate  of  the  acknowledg- 
ment of  a  mortgage  is,  in  the  absence  of  fraud,  conclusive 
evidence   cf  the   facts  therein   stated.      The   grantors  can   not 


501  PUBLIC    WRITINGS  §  403 

impeach   the   acknowledgment    as   against    the    grantee   for   a 
defect  of  which  he  has  no  knowledge. 

Baldwin    V.    Snowdon.    11    O.    S.    20.*?. 

Leininon    v.  Hiitflim.-,.   1    L'.   L.   ;JSS,    1    I.   I).  217. 

Institute   v.   Gibbons,   3   Bull.   5S1,  7   0.   D.   R.  ,11  il. 

(b)  However,  a  grantor  may,  even  as  against  an  innocent 
party,  show  that  he  never  signed  the  mortgage  or  that  he 
never  in  fact  apj)eai'ed  before  the  officer  and  acknowledged 
the  execntion  of  the  mortgage,  though  it  purports  to  have 
been  duly  acknowledged.  But  tlie  proof  must  be  clear  a-id 
convincing. 

Williamson  v.  Carskadden.  30  0.  S.  f)fi4. 
Feagk-s   v.   Tanner,  20   C.   C.  <J4,    11   (  .    I).    17(i. 
Ford  V.  Ubsorne,  45  0.  S.  1. 

(c)  A  notarial  protest  may  be  admitted  to  i)rove  the  dis- 
honor of  a  bill  of  exchange  drawn  in  this  state  and  made 
payable  in  another.  But  the  notarial  certificate  of  protest  is 
only  prima  facie  evidence  of  the  facts  therein  stated,  and  it 
may  be  rebutted. 

Townsond   v.   Bank,  2   0.  S.  345. 
Case  V.  Hi'Hner,  10  Oh.  180. 
Daniel    v.   Downing,   26   0.  S.  578. 
Liggitt    V.   Wing,    31    Bull.   85. 

(d)  A  certificate  of  protest  is  not  to  be  excluded  because 
not  showing  sufficient  demand  and  notice.  Evidence  should 
not  be  rejected  because  it  is  insufficient ;  if  it  tends  to  prove 
the  issue,  it  must  be  admitted. 

Treon  v.   Brown,    14   Oh.    482. 

403.  PRIVATE  WRITINGS  RECORDED. 

(a)  A  copy  of  the  record  of  a  deed  or  other  instrument 
of  writing  duly  certified  by  the  county  recorder  with  his 
official  seal  affixed  thereto,  shall  be  received  in  all  courts  and 
places  within  this  state,  as  prima  facie  evidence  of  the  exist- 
ence of  such  instrument,  and  as  conclusive  evidence  of  the 
existence  of  such  record.  And  it  is  not  necessary  to  account 
for  the  absence  of  the  original  instrument. 

See  Section  8557,  General  Code. 

See  also  Sections  2760-3,  2774,  2775,  3613,  General  Code. 

Burnet  v.   Brush,  6  Oh.   32. 

See  also  Section   15332,  General  Code    (K.   S.  U.   S..  Sec.  907). 


§403  METZLER'S    OHIO    TRIAL    EVIDENCE  502 

(b)  A  certified  copy  from  the  office  of  tlic  recorder  of  an 
instrument  not  required  to  be  recorded,  can  not  be  given  in 
evidence  as  proof  of  the  execution  and  contents  of  the  lost 
original,  but  with  other  proof  of  the  execution  of  the  instru- 
ment, it  may  be  evidence  to  prove  its  contents. 

Webster   v.   Harris,    16   Oli.   400. 

(c)  A  grant  with  but  one  witness  and  without  acknowl- 
edgment is  an  instrument  which  is  not  entitled  to  record; 
and  a  certified  copy  of  the  record  of  such  instrument  would 
not  be  evidence  except  in  a  suit  to  correct  a  mistake.  This 
rule  applies  where  the  officer  taking  the  acknowledgment  did 
not  state  any  official  character;  and  evidence  to  show  official 
character  is  not  admissible  to  make  the  copy  competent.  But 
an  irregularity,  such  as  a  signature  not  in  the  right  place, 
should  not  exclude  the  record. 

Warner  v.  Railroad,  31   0.  S.  265,  270. 

Kilbourn  v.  Fury,  26  O.  S.  153,  161. 

Johnston  v.  Haines,  2  Oh.  55. 

Graham  v.  Burggraf,  10  C.  C.   (N.S.)   594,  12  C.  D.  747. 

(d)  If  a  foreign  acknowledgment  by  an  officer  not  known 
to  our  laws  is  in  a  foreign  language,  and  a  translation  is 
recorded,  the  record  is  not  a  true  copy  and  is  not  evidence ; 
and  it  would  be  necessary  to  show  the  authority  of  the  officer. 

DeSegonrl   v.   Culver,    10   Oh.    188. 


^o"- 


(e)  A  grant  of  a  right  of  way  or  easement  to  a  railway 

recorded  by  the  recorder,  though  not  in  the  lease  record,  may 

be  proved  by  the  record.    Such  record  or  a  copy  thereof  duly 

certified  by  the  recorder  will  be  received  in  evidence  in  all 

courts  and  places  in  the  same  manner  and  to  the  same  effect 

as  the  original.     But  the  correctness  of  such  record  or  copy 

may  be  impeached. 

See  Section  8822,  General  Code. 

Railway  v.  Reid,  4  N.  P.  127,  6  0.  D.  273. 

(f)  Destruction  of  the  record  of  a  deed  does  not  admit 
secondary  evidence  of  it,  as  a  lawyer's  abstract  of  title,  unless 
the  deed  itself  is  proved  to  have  been  lost,  or  its  absence  is 
satisfactorily  accounted  for. 

Middleton  v.  Westeney,  7  C.  C.  393,  4  C.  D.  650. 


503  PUBLIC   WRITINGS  ^  403 

(g)  AVhcre  the  record  of  a  foreclosure  proceeding  had 
been  destroyed,  and  the  only  evidence  of  the  same  now  of 
record  is  contained  in  the  deed  of  the  master  commissioner, 
such  deed  is,  by  virtue  of  section  12349  of  the  General  Code,- 
prima  facie  evidence  of  the  legality  and  regularity  of  such 
sale  and  of  the  correctness  of  the  proceedings  in  the  action. 
Walker  V.  Scott,  29  0.  C.  A.  89,  7  0.  App.  335,  338. 

(h)  A  witness  may  not  testify  as  to  the  quantity  of  land 

conveyed  by  certain  deeds  as  shown  by  the  records  in  the 

recorder's  office.     But  the  actual  location  of  a  boundary  line 

or  of  a  line  made  by  a  county  surveyor  may  be  show^n  by  any 

one  having  knowledge  of  the  fact. 

Irwin  V.  Sclieuerer,   10  C.  D.   827,  10  C.  C.  650. 
Eastman  v.  Wight,  4  0.  S.  156,  161. 
Lloyd   V.   Giddings,   Wright,   694. 
Driggs  V.  State,  52  O.  S.  37. 


CHAPTER  XXVIII. 
JUDICIAL   WRITINGS. 

404.  Foreign  records. 

405.  Former  adjudication. 

406.  Former  conviction. 

407.  Correction   of  record. 

408.  Impeaclimont  of  recorii. 

409.  Questioning   jurisdiction.  , 

410.  Impeachment  of  verdict. 

411.  Records  of  wills. 

412.  Trial-court  records. 

413.  Adjudications   as   evidence. 

414.  Official  papers. 

415.  Records  and  papers  of  justice. 

404.  FOREIGN  RECORDS. 

(a)  The  records  and  judicial  proceedings  of  the  courts  of 
any  state  or  territory,  or  of  any  country  subject  to  the  juris- 
diction of  the  United  States,  shall  be  proved  or  admitted  in 
any  other  court  within  the  United  States,  by  the  attestation 
of  the  clerk  and  the  seal  of  the  court  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  judge,  chief  justice,  or 
presiding  magistrate  that  the  said  attestation  is  in  due  form. 
And  the  said  records  and  judicial  proceedings,  so  authenti- 
cated, shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States,  as  they  have  by  law  or  usage 
in  the  courts  of  the  state  from  w^hich  they  are  taken. 

See  Section  15330,  General  Code  (E.  S.  U.  S.  905). 

(b)  The  attestation  of  the  copy  must  be  according  to  the 
form  used  in  the  state  from  which  the  record  comes;  and  it 
must  be  certified  to  be  so  by  the  presiding  judge  of  the  same 
court,  the  certificate  of  the  clerk  to  that  effect  being  in- 
sufficient. 

Dodd  V.  Groll,  19  C.  C.  718,  8  C.  D.  334. 

m 


505  JUDICIAL   WRITINGS  §404 

(c)  "When  jurisdiction  is  proved,  a  certified  transcript  of 
a  judgment  of  another  state  is  evidence  of  the  judgment. 
And  Avliere  it  appears  from  the  transcript  that  no  complete 
record  was  ever  made,  but  an  agreement  to  enter  the  judg- 
ment appears  from  the  record,  this  is  sufficient. 

DuTilap  V.  Doutliet,   8   C.  D.  2.10.    15   C.   C.   181. 
Brady  v.  Palmer,  10  C.  D.  27,   19  C.  C.  687. 

(d)  Where  the  record  of  a  judgment  in  another  state  had 
been  destroyed  by  fire  and  supplied  under  a  law  of  that  state 
which  did  not  require  personal  service,  a  transcript  of  the 
supplied  record  is  admissible  and  is  conclusive.  And  if  the 
record  would  be  considered  irregular  here,  it  is  neverthe- 
less entitled  to  full  faith  and  credit,  if  certified  as  the  record. 

Poorman  v.  Crane,  Wright,  34". 
IlazzaiJ  V.  Nottingham,   Tappaii,    192. 

(e)  The  proceedings  of  a  foreign  justice  may  be  proved 
by  the  certificate  of  the  justice,  and  that  of  the  clerk  of  the 
county  under  seal  as  to  the  official  character  of  the  justice, 
or  by  an  examined  or  sworn  copy.  A  deposition  of  the  mag- 
istrate as  to  facts  is  not  admissible  as  a  substitute. 

Polton   V.   Platner,    13   Oh.  209. 
Kuhn   V.   ]\Iiller,    Wriglit.    127. 
Bank    v.    Hardin,    \Yright,    430. 

(f)  A  justice's  court  of  another  state  or  any  other  court 
not  of  record,  though  not  within  the  act  of  Congress,  is  with- 
in the  full  faith  and  credit  clause  of  the  national  constitu- 
tion ;  and  their  judgments,  when  duly  proved,  are  entitled 
to  the  same  credit  here  as  Avhere  rendered. 

Bank    v.  Harding,  r>   Oh.   7>^r,. 
Pelton  V.  Platner,   13  Oh.  209. 
StockwcU  V.  Coleman,  10  0.  S.  33. 

(g")  A  transcript  from  a  common  pleas  court  in  Pennsyl- 
vania contained  a  proceeding  upon  a  certiorari  and  brought 
into  that  court  a  proceeding  before  a  justice;  it  Avas  held  that 
a  transcript  from  an  appellate  court  is  not  proper  evidence 
of  proceedings  in  the  court  below. 
Gibbs  V.  Fulton,  2  Oh.  180. 


§405 


METZLER'S    OHIO    TRIAL    EVIDENCE  506 


405.   FORMER  ADJUDICATION. 

(a)  In  the  trial  of  a  civil  action  where  the  defense  of 
res  judicata  is  interposed,  it  is  proper  to  admit  as  evidence 
so  much  of  the  record  of  the  former  trial  as  will  aid  in  deter- 
mining the  issue.  When  it  is  claimed  that  the  record  is  lost, 
the  judgment  may  not  be  proved  by  oral  evidence  unless  the 
loss  is  satisfactorily  proved, 

Reid  V.  Mathers,  14  C.  C.    (X.S.)    473,  23  C.  D.  345. 
Inman  v.  Jenkins,  3  Oli.  271. 

(b)  The  controlling  question  is  whether  the  issues  are 
the  same  in  both  cases.  And  where  the  pleadings  and  the 
record  in  the  former  case  do  not  show  what  issue  was  made, 
it  is  competent  to  show  by  oral  evidence  what  was  the  sub- 
ject-matter of  the  controversy.  And  in  such  cases,  the  ques- 
tion is  one  for  the  jury. 

Board  of  Education  v.  Coagrove,  11  C.  C.  163,  5  C.  D.  343. 
Topliff  V.  Topliff,  8  C.  C.  55,  4  C.  D.  312. 
]\Iahaffy  v.  Rogers,   10  C.  C.  24,  6  C.  D.  88. 
See  Babcock  v.  Camp,  12  0.  S.  11. 
Youmans    v.    Caldwell,    4    0.    S.    71. 

(c)  The  opinion  of  the  court  may  be  resorted  to  in  order 
to  show  that  it  intended  to  adjudicate  a  matter.  And  evi- 
dence is  admissible  to  show  that  the  trial  judge  so  instructed 
the  jury  as  to  exclude  a  certain  matter,  and  a  juror  may 
testify  as  to  what  claims  were  allowed  by  a  jury  under  a 
plea  of  payment. 

Topliff  V.  Topliff,  4  C.  D.  312,  8  C.  C.  55. 

Cf.  Harlan  v.  Gnndorson,  3  0.  App.   141,  20  C.  C.    (N.S.)    462,  26  C. 
D.  441. 

Krel.s  Co.  v.   Studor,   11    Bull.    190,  9   0.  D.  R.   199. 
Piatt   V.   St.   Clair,   6   Oli.   227. 

(d)  But   Avhen   the   pleadings  shoAV   clearly  the   issues,   or 

the  record  of  the  former  adjudication   is  explicit  and   ])lain, 

it   is  error  to  admit  oral   evidence   to   explain  it   or   to  show 

that  questions  not  in  issue  were  considered. 

Topliff  V.  Topliff,  8  C.  C.  55,  4  C.  D.  312. 
Cincinnati   v.  Hosea,   19  C.  C.  744,   10  C.  D.  618. 

(e)  Where  a  judgment  is  relied  upon  as  an  estoppel,  the 
question   is  not   what   the    court   might   have   decided   in   the 


507  JUDICIAL    WRITINGS  §406 

former  action,  but  Avliat  it  did  in  fact  decide  as  shown  by  the 
judgment.  A  judgment  is  conclusive  by  way  of  estoppel  only 
as  to  facts  without  the  proof  or  the  admission  of  which  it 
could  not  have  been  rendered. 

Porter  V.  \Va,;:nor.  3r>  O.  S.  471. 
Lore  V.  Truman,    10  O.   S.   4."). 

(f)  If  the  record  of  a  judgment  offered  in  evidence  to 
support  a  plea  in  estoppel  shows  no  issue  except  oiie  under 
^vhich  neither  of  the  contracts  sued  on  was  confessed  or  ad- 
missible under  the  issue  in  the  former  case,  the  record  is  not 
proper  evidence.  And  evidence  dehors  the  record  to  show 
that  they  were  in  fact  admitted,  would  contradict  the  record 
and  is  not  admissible. 

Hanes  v.   Railroad,  40  0.   S.  05. 

(g)  When  a  party  claims  a  former  adjudication  to  be  an 
estoppel,  such  judgment  should  be  pleaded.  But  where  the 
same  is  not  pleaded  when  it  can  be,  it  is  still  admissible ;  how- 
ever, it  is  not  evidence  conclusive  of  an  estoppel,  and  oral 
evidence  may  be  given  to  show  the  truth. 

Meiss  V.   Gill,  44   0.   S.   253. 

Werner  v.  Cincinnati,  3  C.  C.    (N.S.)    276,   13  C.  D.  475. 

406.  FORMER  CONVICTION. 

(a)  In  a  criminal  case,  a  plea  of  former  conviction  or 
acquittal  presents  an  issue  of  fact ;  and  the  record  of  such 
former  conviction  or  acquittal  or  a  transcript  thereof  is  com- 
petent evidence  in  support  of  such  plea.  Oral  evidence  of 
the  fact  is  not  admissible. 

Whitman  v.  State,  7  C.  C.  (N.S.)   334,  17  C.  D.  735. 
Robbins  v.  Rudd,  2  Oh.  Ifi. 
Griffith  V.  State,  93  O.  S.  294,  6. 

(b)  The  identity  of  the  offense  must  be  proved  by  the 
defendant,  and  it  may  be  proved  by  oral  evidence.  The  state 
may  also  show  in  rebuttal  that  in  the  former  prosecution  it 
elected  to  rely  on  a  different  transaction  from  that  relied  on 
in  the  second  case,  and  "vvhere  the  record  is  silent  as  to  the 
election  it  may  be  proved  by  parol. 

"Hainbridpe  v.  State,  30  0.  S.  264. 
See  Patterson  v.  State,  96  0.  S.  90,  98. 
Section  13630,  General  Code. 


§407  METZLER'S    OHIO   TRIAL    EVIDENCE  508 

(c)  Where  in  a  prosecution  for  bastardy,  the  accused 
pleaded  a  former  prosecution  on  the  same  charge  and  a  settle- 
ment thereof  with  the  complainant,  the  plea  may  be  defeated 
by  showing  that  such  settlement  was  obtained  by  the  fraud 
of  the  accused. 

Kezartee  v.  Cartmell,  31  O.  S.  522. 

(d)  Upon  the  trial  of  an  accused  for  larceny,  where  the 
state  relies  for  conviction  upon  proof  of  a  criminal  plan  to 
commit  several  larcenies,  and  offers  evidence  of  such  criminal 
plan,  the  fact  that  the  accused  at  a  former  trial  had  been 
acquitted  of  another  larceny  does  not  preclude  the  state  from 
proving  that  such  plan  embraced  such  other  larceny,  although 
the  evidence  offered  at  such  second  trial  was  substantially  the 
same  as  that  produced  by  the  state  on  the  former  trial  which 
resulted  in  a  verdict  of  acquittal.  Nor  can  the  record  of  such 
former  acquittal  be  offered  by  the  accused  either  as  a  bar  to 
the  offense  charged  in  the  second  indictment  or  as  an  adjudi- 
cation of  fact  that  the  accused  Avas  innocent  of  the  former 
larceny,  and  that  the  criminal  plan  did  not  embrace  it. 

Patterson  v.  State,  OG  O.  S.  00. 

407.  CORRECTION  OF  RECORD. 

(a)  Every  court  has  power  to  direct  the  clerk  to  correct 
not  only  clerical  errors,  but  also  such  errors  as  may  arise 
from  any  fraudulent  or  improper  alteration  or  mutilation  of 
its  files  or  records.  And  in  order  to  make  such  correction, 
the  court  may  hear  evidence  and  act  on  the    proof. 

TTollister    v.    fudges,    8    0.    S.    201. 

(b)  On  the  hearing  of  a  motion  to  vacate  or  modify  a 
judgment  or  order  on  the  ground  that  it  was  entered  by  mis- 
take, parol  evidence  is  admissible.  The  papers  in  the  case, 
the  minutes  of  the  court,  the  recollection  of  the  judge  and 
of  others  who  heard  the  decision  are  competent  evidence. 

IMiirpl^v  V.  Rwadner,   34  0.  S.   672. 
Lambert  v.   Mustard.    18   0.   S.   419. 
Elliott   V.  Platter,  43  0.   S.   inS. 

(c)  On  a  motion  for  an  order  nunc  pro  tunc,  the  court 
should    resort    to    all    competent    sources    of   information,    in- 


509  JUDICIAL    WRITINGS  §  408 

eluding  the  oral  evidence  of.  witnesses  who  have  personal 
knowledge  of  the  former  judicial  action ;  and  the  proof 
should  shovv-  clearly  and  convincingly  that  such  former  action 
was  in  fact  taken. 

Jacks  V.   Adamson,   56  0.   R.   307. 

Cf.   Stark   V.  Stark,    17   C.  C.    (X.S.)    308,  24   C.   D.   135. 

(d)  Where  action  has  been  taken  by  a  court   which   can 

only  be  evidenced  by  the  record,  and  the  clerk  has  neglected 

to  make  the  entry,  it  is  proper  to  sui)ply  the  evidence  by  a 

nunc  pro  tunc  entry:  but  the  court  is  without  power  to  create 

evidence  by  a  subsequent  order  that  certain  action  was  taken 

which  never  did  in  fact  occur. 

Bradford   v.   Watts.   Wrijriit.   405. 
Trinting    Co.    v.    Green,   52    O.    S.    487. 
Toledo   V.   Preston,   50  0.   S.  361. 

(e)  A  court  has  power  after  the  term,  by  a  nunc  pro  tunc 
entry,  or  otherwise,  to  amend  and  modify  its  judgments  or 
decrees,  or  the  entries  thereof,  so  as  to  correct  clerical  errors 
and  make  the  entries  conform  to  the  judgments  and  "decrees 
actually  rendered. 

Wrentmore  v.  Wrentmore,   17  C.  C.    (X.S.)   81. 

(f)  An  order  of  court  authorizing  a  sale  of  land  made 
after  the  repeal  of  the  statute,  and  when  the  court  was  with- 
out power,  is  void;  and  it  can  not  ])e  made  valid  by  entering 
it  as  of  a  preceding  term  before  the  repeal  of  the  statute. 
And  when  such  an  order  or  judgment  is  attacked,  its  defects 
can  not  be  supplied  by  parol  evidence. 

Ludlow   V.   .Tohnston,   3  Oh.  .""3. 

(g)  Where  the  docket  of  a  justice  of  the  peace  shows  that 
judgment  was  rendered  ten  days  after  the  return  of  the  ver- 
dict by  the  jury,  parol  evidence  is  not  admissible  to  show 
that  the  judgment  in  fact  was  rendered  immediately  upon 
the  return  of  the  verdict. 

Sigler  V.  SliMffer.  0  C.  C.    fX.S.)   207.   10  C.  D.  423. 

408.   IMPEACHMENT  OF  RECORD. 

(a)  The  legal  effect  of  a  judgment  can  not  be  varied  by 
evidence  of  extrinsic  facts  occurring  before  its  rendition.    An 


§408  METZLER'S   OHIO   TRIAL    EVIDENCE  510 

agreement   to    stay    execution    made    at    such    time,    but    not 

entered  upon  the  record,  should  not  form  an  exception. 

Woolwortli   V.   Brisker,    11    0.   S.   593,   597. 

See  Sargent  v.  Sargent,   11  6.  D.  218,  8  N.  P.  238. 

(b)  An  entry  was  placed  on  the  journal  appointing  a 
special  term  of  court,  and  it  was  agreed  by  the  parties  that 
the  entry  was  invalid.  It  was  held  that  it  was  not  error  to 
refuse  to  suffer  the  record  to  be  invalidated  by  such  an  agree- 
ment. And  where  parties  consented  to  an  entry  during  the 
term,  they  will  afterward  be  estopped  from  showing  that  the 
journal  entry  is  untrue. 

Merchant  v.  North,  10  0.  S.  251. 
Potter  V.  Myers,  31    O.  S.   103. 

(c)  In  an  action  on  a  recognizance  forfeited  in  the  court 
of  common  pleas,  it  was  held  that  oral  evidence  is  not  ad- 
missible to  contradict  the  record  of  forfeiture,  and  that  it  can 
not  be  impeached  by  the  sureties  for  fraud. 

Calvin  v.   State,   12  0.  S.   GO. 

(d)  The   probate   courts   of   this  state   are,   in  the   fullest 

sense,  courts  of  record ;  they  belong  to  the  class  whose  records 

import  absolute  verity,  that  are  competent  to  decide  on  their 

own  jurisdiction,  and  to  exercise  it  to  final  judgment,  without 

setting  forth  the  facts  and  evidence  on  which  it  is  rendered. 

Shroyer  v.  Richmond,   16  O.   S.  455. 

Bell  V.   State,  7  O.   App.   185,  27  O.  C.  A.  3.53,  29  C.  D.  48. 

See  Hamilton  v.  Stone,  13  C.  C.   (N.S.)   556,  23  C.  D.  471. 

(e)  Hence,  an  order  appointing  a  guardian,  made  by  a 
probate  court,  in  the  exercise  of  jurisdiction,  can  not  be  col- 
laterally impeached.  The  record  showing  nothing  to  the  con- 
trary, it  will  be  conclusively  presumed,  in  all  collateral  pro- 
ceedings, that  such  order  was  made  upon  full  proof  of  all  the 
facts  necessary  to  authorize  it. 

Shroyer  v.  Richmond,  16  0.  S.  455. 

(f)  And  where  all  the  records  of  the  probate  court  were 
destroyed  by  fire  subsequent  to  the  probate  of  a  will  and  the 
settlement  of  an  estate,  there  being  no  direct  evidence  that 
the  widow  was  cited  to  elect  or  made  any  election   to  take 


511  JUDICIAL    WRITINGS  §409 

under  the  will,  a  court  Avill  presume  that  the  required  citation 
was  issued  and  "that  the  widow  elected  to  take  the  more  valu- 
able estate. 

Weaver  v.  Kin?,  12  C.  C.    (X.S.)   120,  21  C.  D.  199. 

See  Davis  v.  Davis,   11  O.   S.  380. 

(g)  An  equivocal  or  ambiguous  entrj^' appearing  upon  the 
docket  or  journal  of  a  court  may,  however,  be  explained  by 
parol  evidence.  In  an  action  for  malicious  prosecution  resulting 
from  the  arrest  of  plaintiff,  caused  by  defendant,  in  the  mu- 
nicipal court  of  Cincinnati,  on  the  charge  of  defrauding  an 
innkeeper,  evidence  was  introduced  by  the  testimony  of  the 
deputy  clerk  of  the  municipal  court,  who  produced  and  identi- 
fied the  judge's  and  clerk's  dockets  of  the  municipal  court, 
each  of  which  showed  the  notation  as  to  said  case:  "Dis- 
missed for  .want  of  prosecution.  Costs  of  warrant."  The 
trial-court  refused  to  permit  the  plaintiff  to  answer  the  ques- 
tion: "Were  you  actually  dismissed  from  that  court?"  It  was 
held  that  it  was  error  in  the  trial-court  to  refuse  to  permit 
the  plaintiff'  to  testify  as  to  the  fact  of  his  dismissal,  con- 
sidering the  equivocal  or  ambiguous  entry  found  in  the 
journal. 

James  v.  Hotel  Co.,  6  O.  App.  162,  28  0.  C.  A.  446,  30  C.  D.  259. 

(h)  And  in  a  suit  on  a  judgment,  oral  evidence  is  admis- 
sible to  show  that  the  plaintiff  in  the  record  of  the  judgment 
is  identical  with  the  plaintiff  in  such  suit.  And  where,  from 
the  oral  evidence,  it  appears  that  in  the  record  of  the  judg- 
ment the  plaintiff  therein  was  by  mistake  described  as  a  cor- 
poration, when  in  fact  the  plaintiff  was  a  partnership,  or  its 
assignee,  seeking  to  recover  on  the  judgment,  such  evidence 
should  not  be  excluded. 

Jackson  v.  Foundry  &  Machine  Co.,  6  0.  App.  171,  27  O.  C.  A.  81,  28 
C.  D.  126. 

409.  QUESTIONING  JURISDICTION. 

(a)  When  it  does  not  otherwise  affirmatively  appear  from 
the  record,  it  will  be  presumed  that  a  court  of  general  juris- 
diction regularly  acquired  and  lawfully  exercised  its  juris- 
diction over  the  parties.    And  the  record  of  an  inferior  court 


§409  METZLER'S   OHIO   TRIAL    EVIDENCE  512 

imports  absolute  verity  when  it  shows  on  its  face  that  juris- 
diction was  obtained. 

Paulin  V.  Sparrow,  01  0.  S.  279. 
Kingsborough   v.   Tousley,  56   0.   S.  4.50,  4.55. 
McCurdy  v.  Baughman,  43  0.  S.  78. 

(b)  Therefore,  if  the  language  of  a  finding  imports  that 
the  notice  required  by  law  had  been  regularly  given,  evidence 
will  not  be  received  to  contradict  this  finding  of  the  court. 
Where  jurisdiction  is  shown  or  must  be  presumed,  the  judg- 
ment or  order  of  the  court  can  not  be  collaterally  impeached. 

Tuchards  v.  Skiff,  8  0.  S.  586. 

(c)  But   before   jurisdiction   can   be    affirmed   to    exist,   it 

must  be  made  to  appear  that  the  law  has  given  the  tribunal 

power  to  entertain  the  complaint  against  the  person  or  thing 

sought  to   be  charged   or   affected ;    that   such   complaint   has 

actually  been  preferred ;  and  that  such  person  or  thing  has 

been   properly   brought    before    the    tribunal   to    answer    the 

charge. 

Sheldon  v.  Newton,   3   0.   S.   494. 
Spoors  V.  Coen,  44  O.  S.  497. 

(d)  The  jurisdiction  of  a  court  entering  a  judgment  may 
be  inquired  into,  when  such  judgment  is  made  the  foundation 
of  an  action.  And  it  is  competent  to  plead  and  prove  in  de- 
fense, though  it  be  in  contradiction  of  the  record,  that  the 
defendant  was  not  served  with  process,  nor  jurisdiction  of  his 
person  otherwise  obtained  by  the  court  rendering  the  judg- 
ment. 

Spier  V.  Corll,  33  0.  S.  236. 
Kingsborough  v.  Tousley,  50  0.  S.  4.50. 

(e)  A  judgment  of  another  state,  which  is  duly  authenti- 
cated as  a  judgment  of  a  court  of  record  of  such  state,  ia 
entitled  to  full  faith  and  credit  if  it  appears  that  such  court 
had  jurisdiction  over  the  subject-matter  and  the  person,  and 
that  it  is  valid  and  conclusive  in  the  courts  of  that  state. 

Sipes  V.  ^Vhitney,  30  0.  S.  69. 
Spencer    v.    Brockway,     1    Oh.    259. 
Goodrich  v.  Jenkins,  6  Oh.  43. 


513  JUDICIAL   WRITINGS  §410 

(f)  But  the  record  of  a  judgment  rendered  in  another 
state  may  be  contradicted  as  to  the  facts  necessary  to  give 
the  court  jurisdiction ;  and  if  it  is  shown  that  such  facts  did 
not  exist,  the  record  will  be  a  nullity,  notwithstanding  it  may 
recite  that  they  did  exist.  Neither  the  constitutional  pro- 
vision requiring  full  faith  and  credit  nor  the  federal  statute 
prevents  an  inquiry  into  the  jurisdiction. 

Pennywit   v.  Foote,   27   0.  S.  COO. 

Spier  V.  Corll,   33  0.  S.  23(;. 

Marks  v.  Fordyce,  2  A.  L.  R.  3112,  r^  O.  D.  R.  81. 

(g)  In  a  proceeding  invoking  the  original  jurisdiction  of 
the  supreme  court  to  prohibit  the  enforcement  of  a  judgment 
rendered  by  the  court  of  appeals,  upon  the  ground  that  that 
court  had  no  jurisdiction  of  the  cause,  the  supreme  court  acts 
as  a  reviewing  court  and  is  bound  by  the  authenticated  record 
of  the  court  of  appeals  as  to  the  date  of  the  rendition  of  the 
decision  or  judgment  by  that  court. 

State,  ex  re!.,  v.  Jones,  95  O.  S.  357. 

(h)  The  distinction  between  cases  where  the  validity  of  the 
record  of  a  court  of  general  jurisdiction  is  drawn  in  question 
collaterally,  and  those  in  which  such  record  is  directly  im- 
peached by  writ  of  error  or  bill  of  review,  is  broad  and  well 
defined.  In  the  one  case,  jurisdiction  is  pi-esumed  prima  facie, 
unless  the  record  disproves  it ;  while  in  the  other,  if  it  is  de- 
nied, its  existence  must  be  proved  by  the  record  itself. 
Trimble  v.  Longwortli,  13  O.   S.  431,  439. 

410.  IMPEACHMENT  OF  VERDICT. 

(a)  The  testimony  of  jurors  will  not  be  received  to  im- 
peach their  verdict  by  showing  misconduct  on  the  part  of 
other  jurors.  To  permit  jurors  to  impeach  the  behavior  of 
their  fellow-jurors  would  open  the  door  to  every  species  of 
insinuation,  would  detract  from  that  relation  of  confidence 
■which  should  be  established  among  the  members  of  the  jury, 
and  would  endanger  the  stability  of  verdicts  and  the  security 
of  judgments. 

Ilulet  V.   Barnett,   10  Oh.  459,  461*. 
Farrer  v.   State,  2  0.  S.  54. 
Murray  v.  State,  23   C.  C.    (N.S.)    508. 
Coins  V.   State,   40   0.    S.   457,   472. 


§410  METZLER'S    OHIO    TRIAL    EVIDENCE  514 

^  r 

(b)  Affidavits  of  jurors  stating  tliat  they  misunderstood 
the  charge  of  the  court  or  that  the  jury  adopted  the  average 
method  of  arriving  at  the  amount  of  their  verdict,  will  not 
be  received  on  motion  to  set  aside  the  verdict.  And  it  is  not 
proper  to  permit  a  verdict  to  be  questioned  by  the  affidavits 
and  testimony  of  jurors  as  to  w^hat  consideration  they  gave 
certain  arguments  of  counsel. 

Holman  v.  Eiddle,   8  0.   R.   3S4. 

Jani's   V.   Hoehn,   3   C.   C.   433,   2   C.   D.  245. 

State  V.  Sisson,  9  N.  P.   (N.S.)   420,  20  0.  D.  20.'5. 

(c)  In  a  criminal  case  there  were  offered  the  affidavits  of 
two  jurors  to  the  effect  that  the  degree  of  homicide  was 
determined  by  lot,  and  the  trial  court  held  them  incompetent. 
In  the  opinion  it  is  said  that  a  case  like  this  strains  the  prin- 
ciple to  its  utmost  tension,  and  suggests  a  doubt  whether 
there  may  not  be  found  a  carefully  guarded  exception  to  a 
rule,  tlie  universal  application  of  which  may  present  a  spec- 
tacle so  discreditable  to  our  jury  system. 

Coins  V.   State,  46  0.  S.  4o7.  472. 

See   also   Farrar  v.    State,  2   0.   S.   54,  56. 

(d)  But  affidavits  of  jurors  as  to  the  conduct  of  a  fellow- 
jaror  on  view  of  premises  are  admissible,  as  that  would  not 
be  invading  the  jury-room.  And  a  juror's  affidavit  is  ad- 
missible to  sustain  a  verdict  upon  a  motion  for  a  new  trial 
on  the  ground  of  a  juror's  misconduct  or  his  disqualification. 

Aim  V.  Andrews,  6  C.  D.  514,  0   C.  C.  501.  504. 
State    V.    Cuppett,    1    W.   L.   M.   320,   2   O.    D.    R.   78. 

(e)  Such  affidavits  are  also  admissible  to  show  that  the 
verdict  as  received  and  entered  of  record  does  not  embody 
the  true  findings  of  the  jury,  by  reason  of  a  mistake  in  draw- 
ing it  or  of  a  mistake  made  in  oj^en  court  when  it  was 
received. 

Wertz  V.  -Railroad.   11   O.  D.   804,   30  Bull.  280. 

(f)  And  the  affidavits  of  jurors  may  be  admitted  when  a 
foundation  is  laid  therefor.  So  where,  on  a  motion  for  a  new 
trial,  other  testimony  is  given  tending  to  show  that  the  jurors 
in  their  retirement  had  a  newspaper  containing  a  part  of  the 


515  JUDICIAL    WRITINGS  §  411 

charge,  affidavits  of  jurors  may  be  received  to  sliow  \vhat  the 
paper  was,   if  their  possession  and  use   of  it   do  not  involve 
a  charge  of  improper  motives  on  the  part  of  the  jurors. 
Farrer   v.   State,  2*  0.    S.   54. 

(g)  TVhere  a  juror  in  a  criminal  case  makes  no  statement 
with  respect  to  the  matter  on  trial  until  the  jury  retires,  and 
then  makes  to  his  fellow-jurors  a  statement  of  matters  alleged 
to  be  within  his  own  knowledge,  contradicting  in  an  impor- 
tant particular  the  testimony  of  one  of  the  defendant's  wit- 
nesses, and  the  defendant  is  convicted,  ground  is  atforded  by 
such  misconduct  for  a  new  trial  Avhere  the  fact  is  properly 
made  to  appear;  but  the  affidavits  of  jurors  Avill  not  b.e  re- 
garded for  the  purpose  of  setting  aside  tlie  verdict  until  mis- 
conduct of  the  jury  is  shown  aliunde. 

Kent  V.  state,  42   0.   S.  42fi. 

(h)  Since  affidavits  of  jurors  can  not  be  received  to  im- 
peach their  verdict  without  other  evidence  aliunde,  the  affi- 
davit of  an  attorney  setting  up  what  a  juror  told  him  can 
not  be  admitted,  as  it  does  not  constitute  a  showing  aliunde. 
Misconduct  on  the  part  of  a  jury  can  not  be  based  on  the 
unsupported  afSdavit  of  one  who  obtained  his  information 
from  a  member  of  the  jury. 

Parker  v.  Blackwelder,  7  C.  C.  140,  3  C.  T>.  700. 

Andrews  v.  State,  1.5  C.  C.    (X.S.)    241,  23  C.  D.  564. 

411.  RECORDS  OF  WILLS. 

(a)  A  copy  of  a  recorded  will,  with  a  copy  of  the  order 
of  probate  annexed  thereto,  certified  by  the  judge  of  probate 
under  seal  of  his  court,  will  be  as  effectual  in  all  cases  as  the 
original  would  be.  if  produced  and  establlslied  by  proof.  In 
fact,  the  original  without  the  record  of  probate  Avould  not  be 
evidence  in  a  case  involving  land,  but  is  admissible  to  show 
error  in  the  record  of  the  will. 

See  Section    10520,   General    Code. 

See  also  Sections  10530,  10535,  10536,  General  Code. 

Anderson  v.  Kvans,  3  W.  L.  M.  371,  2  O.  I).  11.  .502. 

Wolf    V.    Menawr,    14    0.    D.    128. 


§412  METZLER'S    OHIO   TRIAL    EVIDENCE  516 

(b)  A  copy  of  the  probate  and  record  of  a  will  duly 
certified  by  the  probate  judge  is  conclusive  evidence  of  the 
validity  of  the  will  on  the  trial  of  a  collateral  issue  between 
a  stranger  and  a  devisee  respecting  the  ^property  devised ; 
and  it  is  admissible  as  evidence  although  a  proceeding  to  con- 
test it  is  pending  at  the  time. 

Brown   v.   Burdick,  25   0.   S.  260. 

(c)  When  a  copy  of  a  foreign  will  is  admitted  to  record 
in  this  state,  and  a  copy  of  such  record  is  recorded  in  another 
county,  the  latter  record  is  competent  evidence  in  an  action 
commenced  before  the  record  was  made  to  recover  property 
devised  by  the  will. 

Carpenter  v.  Denoon,  21)  O.  S.  .370. 
tSee   Section    10335,   General    Code. 

(d)  If  an  authenticated  copy  of  the  record  of  a  will  shows 
that  the  will  Avas  executed  and  proved  according  to  the  laws 
of  another  state,  evidence  contradicting  the  record  should  not 
be  admitted.  The  record  should  have  the  same  effect  here 
that  it  has  where  made.  In  the  case  of  a  foreign  will,  if  the 
original  can  not  be  produced,  an  authenticated  copy  wdll  be 
admitted. 

Barr   v.   Closterman,   2    C.   C.   387,    1    C.   D.  546. 
See  Faber's  Estate,  5  O.  D.  575,  7  N.  P.  561. 
Section    15330,   General    Code    (R.    S.  U.    S.  905). 

412.  TRIAL-COURT   RECORDS. 

(a)  Where  no  complete  record  has  been  made,  the  jour- 
nal and  docket  entries,  and  all  the  files  and  papers  properly 
connected  with  a  case,  are  admissible  in  evidence.  And  if 
the  original  papers  are  lost,  parol  evidence  may  be  admitted. 

Morgan  v.  Burnet,  18  Oh.  535. 

Sutcliffe  V.   State,   18  Oh.  469. 

Chapman  v.  Seely,  4  C.  D.  395,  8  C.  C.  179. 

Young  V.  Buckingham,  5  Oh.  485. 

Barr  v.  Chapman,  30  Bull.  264,   11   0.  D.  R.  862. 

(b)  On  a  trial  touching  the  right  to  land,  decrees  in 
chancery  between  other  parties  concerning  the  same  land  are 
admissible   in   evidence   to   show   the   character   of  possession. 


517  JUDICIAL    WRITINGS  §  412 

And  that  a   defendant  Avas  a  licensed  tavern-kcepef  may  be 

proved  by  the  entry  of  a  license  granted  to   defendant   and 

entered  on  the  journal  of  the  common  jileas  court. 

Euckingham   v.   Hanna.   2   0   S.   551. 
Ealdwin  v.  State,  6  Oli.  15. 

(c)  By  virtue  of  the  provisions  of  section  11^59  of  the 
General  Code,  a  party  answering  interrogatories  annexed  to  a 
pleading  may  introduce  his  own  answers  in  evidence  so  far  as 
they  are  responsive  to  the  questions  propounded,  and  contain 
competent  testimony  on  the  issues  joined. 

Gypsum  Co.  v.  Raihray,  7  0.  App.  145,  27  0.  C.  A.  481,  2".  C.  D.  V.r,. 

(d)  An  entrj^  on  the  appearance  docket  stating  the  names 
of  persons  accepted  as  sureties  on  a  bond  is  admissible  if  tlio 
bond  is  lost.  But  where  a  petition  in  a  former  case  is  lost, 
a  summary  on  the  appearance  docket  Avill  be  rejected  as 
improper  secondary  evidence  of  the  contents  of  the  petition. 

Chapman   v.  Reely,  4  C.  D.  305,  8   C.  C.   170. 
Roberts  v.   Briscoe,   1   C.  C.  577,   1   C.  D.   323. 

(e)  And  "where  a  record  and  a  decree  of  court  had  been 

destroyed  by  fire,  an  abstract  thereof  is  not  competent  in  any 

other  case  without  proof  of  correctness  by  oi^.e  who  m.ade  or 

compared  it. 

Irwin   V.   Scliouorrr.   0   C.   D.   815,    10   C.   C.   508. 
See  Middleton  v.  Westeny,  7  C.  C.  303,  4  C.  I).  050. 

(f)  Where  defendant  is  charged  v>ith  perjurj',  and  the 
.state  has  proved  by  records  the  pendency  of  the  case  in  which 
the  perjury  was  committed,  and  proved  the  trial  of  the  case 
by  oral  evidence  without  objection,  the  state  lu^ed  not  offer 
journal  entries  to  show  the  trial  and  the  disposition  of  the 
case.  When  an  answer  contained  the  false  s-i'-earing,  and  it 
has  been  lost,  a  sworn  copy  certified  by  the  clerk  is  ad- 
missible, 

•Barnes  v.   State,   8   C.  D.    153,   15   C.  C.   14. 
Silver  v.  State,   17  0.  S.  3(15,  300. 

(g)   Where  marriage  was  proved   and   Hie   presnmplioM   (  f 
a   continued  marriage  relation   was   relied    on,    it    was    proved 


§413  METZLER'S    OHIO    TRIAL    EVIDENCE  518 

in  rebuttal  that  the  wife  had  made  admissions  that  she  had 
procured  a  divorce.  In  this  there  was  no  error,  as  the  wife 
had  refused  to  disclose  where  the  record  could  be  obtained. 

Edgar    V.    Pvicliardson,    .33    0.    S.    5S1,    502. 
Cf.  State  V.  Spring,  Tappan,  167. 

413.  ADJUDICATIONS  AS  EVIDENCE. 

(a)  As  a  general  rule,  an  adjudication  in  one  case  is  not 
admissible  in  evidence  in  another  case.  In  the  trial  of  a 
guardian  for  embezzlement,  a  court's  orders  and  judgment  on 
exceptions  to  his  inventory  and  accounts  as  guardian  are  not 
admissible. 

Shelley  v.   State,   10   C.   C.    (X.S.)    164. 

(b)  And  where  two  persons  are  indicted  separately  for  the 
same  arson  and  one  is  convicted  and  judgment  passed,  the 
record  is  not  admissible  evidence  against  the  other  when  on 
trial. 

Kazer  v.  State.  .">  Oh.  '2S0. 

C(.  King   V.   xXew    London.   S   N.  P.    vN.S.)    34,    10  0.  D.   411. 

Cf.    Evans    v.   State,    2t    O.    S.   458. 

(c)  On  a  criminal  trial  for  failure  to  support  an  illegiti- 
mate child,  the  record  of  a  bastardy  proceeding  wherein  the 
defendant  was  adjudged  its  reputed  father  is  not  competent 
evidence,  as  a  preponderance  is  sufficient  in  such  a  proceeding. 

Gee  V.  State,  60  0.  S.  48.'i. 

Cf.  Lanman  v.  Piatt,  2  W.  L.  J.  426,  1  0.  D.  R.  135. 

(d)  The  tender  of  a  plea  of  guilty  of  assault  and  battery 
by  the  accused  upon  arraignment  under  an  indictment  charg- 
ing shooting  with  intent  to  wound  and  shooting  with  intent 
to  kill,  which  tender  is  rejected  by  the  state,  is  not  a  proper 
subject  of  record  on  the  journal  of  the  court.  And  an  entry 
on  the  journal  reciting  the  tender  of  such  a  plea  and  its  re- 
jection by  the  state  is  inadmissible  in  evidence  upon  the  trial 
of  the  accused  under  the  indictment. 

Canter  v.  State,  00  0.  S.  1. 

(e)  But  a  plea  of  guilty  in  a  criminal  case  is  admissible 
in  a  civil  action  for  damages  for  the  same  offense.    But  neither 


519  JUDICIAL    WRITINGS  §414: 

the  plea  nor  tlie  judp^ment  fouudcd  iipon  it  is  conclusive  in  the 

civil  action. 

Clark  V.  Irwin,  0  Oh.  131. 
Heeney  v.  Kilbane,  5!)  O    S.  499. 
Mihalovitch  v.  Bartlett,  12  C.  C.   (N.S.)    160. 

(f)  In  an  action  for  damages  for  assault  and  battery, 
the  docket  of  the  justice  before  whom  the  prosecution  there- 
for was  had,  showing  the  affidavit  and  the  plea  of  guilty, 
will  be  admitted,  not  as  absolute  proof  of  guilt,  but  only  as 
evidence  subject  to  explanation. 

Hendricks  v.  Fowler,  9  C.  D.  200,   16  C.  C.  597. 

(g)  Where  a  plea  of  guilty  is  offered  in  evidence  in  a 
civil  action,  the  affidavit  or  a  copy  thereof  should  be  offered 
and  shown  that  it  was  read  to  defendant  and  that  he  entered 
a  plea  of  guilty.  It  is  error  to  permit  the  magistrate  to 
testify  to  the  plea  without  showing  the  charge  if  the  affidavit 
or  a  copy  can  be  produced. 

Heeney  v    Kilbane,  59   0.  S.  499. 

(h)  And  on  an  issue  of  insanity  as  a  defense  to  crime,  an 
adjudication  of  insanity  by  the  probate  court  four  years  be- 
fore trial  is  admissible.  The  adjudication  determines  the 
status;  and  such  an  inquest  is  analogous  to  proceedings  in 
rem. 

^^^leelpr  V.   state,  34  O.   S.  394. 

414.  OFFICIAL  PAPERS. 

(a)  Original  executions  are  received  as  evidence  of  their 
contents;  but  they  must  be  shown  to  be  originals.  Papers  in 
another  case  in  anotlicr  court  do  not  prove  themselves.  Ex- 
emplified copies  under  seal  are  also  admissible. 

Bank    v.    White.    Wright,    51,    52. 
Iluglies  V.  Lohaii,   1  C.  C.  9,  1  C.  1).  5. 

(b)  An  official  return  duly  made  upon  jn-ocess  by  a  sworn 
officer  in  relation  to  facts  which  it  is  his  legal  duty  to  state 
in  it,  is,  as  between  the  j^arties  and  ])iivies  to  tlie  suit,  con- 
elusive  of  tlie  facts  therein  stated  until  set  aside  l)y  due 
jirocess   of  law:   but   as   to   all    otlier    ])ersons,   sui-li    i-ctuni    is 


§415  METZLER'S    OHIO    TRIAL    EVIDENCE  520 

prima  facie  evidence  of  such  facts,  and  is  subject  to  be  dis- 
proved whenever  it  is  offered  in  evidence. 

Phillips    V.   Ehvcll,    14   0.   S.  240. 

Root  V.  Railroad,  4.-)  O.  S.  222.  231. 

See  also  Clafflin  Co.  v.  Evans,  .55  O.  S.  183. 

Kalb  V.  Wise,  5  N.  P.  5,  5  0.  D.  533. 

(c)  A  notice  of  sale  may  be  proved  by  the  production  of 
a  newspaper  containing  an  advertisement  of  the  notice,  ac- 
companied by  proof  of  publication  for  the  required  length  of 
time.     And   a    notice   of   attachment   may  be   proved   in   the 

same  M'ay. 

Thevenin   v.   Slocum,    16   Oh.   519. 
Parker   v.   Miller,   i)   Oh.    108,    114. 

(d)  But  the  clerk  of  a  court  has  no  authority  to  certify 

under  seal  an^'  matter  not  of  record  nor  on  file;  such  facts, 

though  connected  with  his  official  duties,  must  be  proved  as 

other  facts  are  proved. 
Bank  v.  White,  Wright,  51. 

415.  RECORDS  AND  PAPERS  OF  JUSTICE. 

(a)  A  transcript  of  the  docket  of  a  justice  is  competent 
evidence  of  the  proceedings  in  a  justice  court;  but  it  is  not 
competent  evidence  of  facts  not  required  by  statute  to  be 
entered  on  the  docket.  An  entry  showing  the  date  of  the 
return  of  the  warrant  is  not  competent  to  prove  when  the 
arrest  was  made. 

Peney  v.  fiilliland.  Wripht,  3S. 

White  V.  Perrine.  1   W.  L.  J.  .307,  1   O.  D.  R.  58. 

Armstrong  v.    State.   21    0.   S.   357. 

(b)  "Where  a  pica  of  guilty  before  a  justice  of  the  peace 
is  offered  in  evidence,  the  affidavit  or  a  copy  thereof  should 
be  produced  if  it  can  bo.  The  docket  of  the  justice  showing 
the  affidavit  and  tlie  plea  will  be  admitted;  but  the  justice 
should  not  be  permitted  to  testify  to  the  plea  without  showing 
the  charge. 

lleeiiey  v.   Kilbane,  50  O.  S.  400. 

Hendricks  v.   FoMler.  9  C.  D.  200,   Ifi  C.  C.  597. 

(c)  "Where  the  written  examination  taken  before  the 
justice  in  a  bastardy  proceeding  is  lost,  its  contents  may  be 
proved  by  parol,  and  the  complainant  is  a  competent  witness 
for  such  purpose. 

Hoff  V.  Fishor.  2G  0.  S.  7. 


CHAPTER  XXIX. 

THE  PAROL  EVIDENCE  RULE —RULE  OF 

EXCLUSION. 

4lG.  fieneral   principles. 

417.  Third  person.s   not   affected. 

418.  Rule  as  to  contracts  in  general. 

419.  Rule  as  to  land  contracts. 

420.  Rule  as  to  insurance  policie.'i. 

421.  Rule  as  to  bonds. 

422.  Rule  as  to  wills. 

423.  Rule  as  to  commercial  paper— Makers. 

424.  Rule  as  to  commercial  paper — Indorsera. 

425.  Rule  as  to  receipts. 

426.  Rule  as  to  bills  of  lading-. 

416.  GENERAL  PRINCIPLES. 

(a)  The  general  rule  is  that  parol  evidence  is  not  ad- 
missible to  varj^  the  terms  of  a  written  contract.  And  this 
rule  is  the  same  in  equity  as  at  law,  unless  the  equitable 
powers  of  the  court  are  invoked  upon  some  ground  warrant- 
ing it  in  going  back  of  written  contracts. 

Serviss  v.  Rtockstill,  .30  O.  S.  41 S. 

Monnett   v.  Monnctt,   46   O.   S.   30.  '' 

Church  V.  Pennington,   10  C.  D.  74,   18   C.  C.  408. 

Bank  v.  Ciiandelier   Co.,  9  C.   D.  .807,   17   C.  C.  443. 

(b)  "Where  the  words  of  a  written  instrument  are  free 
from  ambiguity,  and  where  external  circumstances  do  not 
create  any  doubt  or  difficulty  as  to  the  proper  application  of 
those  words  to  claimants  under  the  instrument,  or  as  to  the 
subject-matter  to  which  it  relates,  such  instrument  is  always 
to  be  construed  according  to  the  strict,  plain  and  common 
meaning  of  the  words  themselves;  and  extraneous  evidence 
is  utterly  inadmissible. 

.Tolmson    v.    Pierce,    16   O.   S.    472,   477. 

(c)  The  rule  which  admits  parol  evidence  of  surround- 
ing circumstances  does  not  authorize  the  varying  of  the  plain 

521 


§416  METZLER'S    OHIO    TRIAL    EVIDENCE  522 

terms  of  a  Avritton  eoiitraet,  luiless  it  be  shown  that  the  con- 
tract was  made  tlirough  mistake,  fraud,  surprise  or  accident. 

Smitt   V.  Aultnian  &  Taylor  Co..  2.1  C.  C.    (X.S.)   5G1,  28  C.  D.  4G. 

Doming  V.  Tnistoes,  31  0.  S.  41,  50. 

Sinton  V.  E/ekiel,  8  ,A.  L.  R.  424,  6  O.  D.  R. '845. 

(d)  The  oral  declarations  of  a  party  to  a  written  instru- 
ment, made  before  or  at  the  time  of  its  execution,  of  an  in- 
tention or  purpose  not  therein  expressed,  or  |and]  different 
from  that  to  be  derived  from  its  terms,  are  inadmissible  in  an 
action  on  the  instrument  wiiere  its  reformation  is  not  sought. 
Parol  evidence  is  no  more  admissible  to  contradict  or  vary  a 
contract  implied  from  a  written  instrument  than  it  is  to  con- 
tradict or  vary  its  express  terms. 

■      Tuttle  V.    Bur!.;ctt.   53   ().   S.   4'.)S. 

ff.   Blink   V.   Cliaiidclie)-   (  o..    17   V.  C.  443,  9   C.   D.   807. 
Douglass  V.  Campbell,  2   C.   C.    (X.S.)    62,    14   C.   D.  241. 

(e)  "What  has  been  stated  to  be  the  general  rule  as  to  the 
exclusion  of  parol  evidence  may  be  regarded  as  an  exception 
to  a  rule  still  more  general.  Witnesses  are  generally  legiti- 
mate means  and  instruments  of  evidence.  Oral  evidence  may 
be  used  indifferently  as  original  and  independent  evidence  of 
a  fact,  eitlier  concurrently  Avith,  or  in  opposition  to,  written 
evidence,  with  certain  exceptions;  and  written  evidence,  how- 
ever superior  it  may  be,  and  frequently  is,  in  effect,  to 
mere  oral  evidence,  does  not  in  any  case,  of  its  own 
authority,  unaided  by  an  express  rule  of  law,  ex- 
clude such  evidence.  But  when  written  instruments 
are  appointed,  either  by  the  immediate  authority  of  law,  or 
by  compact  of  parties,  to  1)e  the  jiermanent  repositories  and 
testimonies  of  truth,  it  is  a  matter  both  of  principle  and  of 
policy  to  exclude  any  inferior  evidence  from  being  used, 
either  as  a  substitute  for  such  instruments,  or  to  contradict 
or  alter  them. 

Howard  v.  Thomas,  12  0.  S.  201,  205. 

(f)  Where  the  parties  have  executed  a  writing,  they  have 
agreed  that,  in  the  event  of  any  misunderstanding,  the  writ- 
ing shall  be  referred  to  as  proof  of  their  act  and  intention, 
and  that  thev  would  not  subject  themselves  to  any  stipula- 


523  THE    PAROL    EVIDENCE    RULE  §418 

tions  beyond  their  contract;  because  if  the}-  meant  to  be 
bound  by  any  such,  then-  miglit  have  added  tlieni  to  their  con- 
tract. For  this  reason,  a  contract  is  presumed  to  contain  all 
the  stipulations. 

Howard  V.  Thomas,   12  0.  S.  201,  205. 

AVestwater  v.  Pool   Co.,   12  C.  C.    (X.S.)   382,  22  C.  D.   121. 

Weller  Co.  v.  Gordon,   14  C.  D.  407,  7   C.  C.    (N.S.)    303,  307. 

417.  THIRD  PERSONS  NOT  AFFECTED. 

(a)  The  rule  applies  only  to  controversies  between  the 
parties  to  the  instrument  and  their  privies.  In  a  suit  between 
third  persons,  strangers  to  the  instrument,  or  between  a  party 
to  the  instrument  and  a  stranger,  parol  evidence  is  admissible. 

Clapp  V.  Banking  Co.,  oO  0.  S.  528. 

(b)  A  note  signed  by  two  individuals  can  be  proved  orally 
to  be  their  partnership  debt  by  a  creditor  of  one  of  them, 
wlio  claims  a  priority  in  the  distribution  of  the  assets  of 
such  one. 

Clapp  V.  Banking  Co.,  .50  O.  S.  528,  540. 

(c)  The  foregoing  rule  does  not  apply  against  a  person 
who  acts  in  reliance  on  the  writing  and  did  not  know  of  its 
parol  limitations.  Parol  evidence  should  not  be  admitted 
when  it  would  be  prejudicial  to  interests  already  acquired  by 
third  persons  on  the  faith  of  the  instrument  as  it  stood. 

Lumber  Co.  v.  Holler,  84  0.  S.  201,  200. 

Simnion.s  v.  Pul.lisliing  Co.,  4  N.  P.  89,  6  0.  I).  100,  101. 

See  Miller  v.  Sullivan,  20  0.  S.  630. 

(d)  A  mortgage  duly  recorded  is  not  invalid  as  to  third 
persons  from  a  want  of  certainty  in  the  description  of  the 
debt  intended  to  be  secured.  As  between  the  parties,  parol 
evidence  may  be  admitted  to  apply  the  mortgage  to  its  proper 
subject-m-atter ;  but  it  can  not  be  permitted  that  third  per- 
sons who  have  relied  on  the  record  should  be  misled  or 
deceived. 

Hurd   V.    Robinson,    11    O.    S.    232. 

418.  RULE  AS  TO  CONTRACTS  IN  GENERAL. 

(a)  Whenever  a  right  is  vested,  or  created,  or  extinguished 
by  contract   or  otherwise,   and   writing   is   employed   for  that 


^418  METZLER'S    OHIO    TRIAL    EVIDENCE  524 

jiurpose,  parol  evidence  is  not  admissible  to  alter  or  contra- 
dict the  legal  and  common-sense  construction  of  the  instru- 
ment. Therefore,  a  written  instrument,  in  so  far  as  it  trans- 
fers a  right  or  is  intended  to  be  evidence  of  a  right,  can  not 
be  contradicted  by  extrinsic  facts. 
Shehy  v.   Cunningham,  SI   0.   S.   280.  203. 

(b)  In  an  action  based  upon  a  written  contract,  it  is  in- 
competent for  the  parties  to  testify  as  to  what  was  their 
understanding  of  it.  especially  so  when  the  testimony  would 
clearly  contradict  the  plain  terms  of  the  contract. 

Van  Arsdale   v.  Bl-OAvn,  IS  C.  C.  .'2,  9  C.  D.  488. 
Denton   v.  Whitney,   31   0.   S.  SO. 

(c)  In  an  action  on  a  written  contract  which  provides 
that  it  covers  all  agreements  and  understandings,  either  ver- 
bal or  written,  evidence  tending  to  show  a  verbal  warranty 
made  by  an  agent  before  the  signing  of  the  contract  will 
not  be  admitted. 

Weber   v.   Lamp   Co.,   20   C.  C.    (X.S.)    270. 

(d)  Parol  evidence  is  not  admi.ssible  to  add  an  express 
warranty  to  a  written  contract  of  sale,  which  is  complete 
without  it.    But  this  does  not  exclude  an  implied  warranty. 

Hauser  v.   Curran,   8  O.  D.  405,   5   X.   P.  224. 

(e)  A  contract  for  goods  was  contained  in  several  letters, 
one  of  which  stated  the  time  for  shipment,  and  it  was  held 
that  parol  evidence  could  not  be  admitted  to  show  that  a 
different  time  for  shipment  was  agreed  upon  orally. 

Box  Co.  V.  Paper   Co.,  4   C.   C.    (X.S.)    17,   10   C.   D.   27. 

(f)  In  a  suit  on  a  written  contract  for  the  stipulated  price 
for  an  exclusive  patent  right  in  certain  territory,  the  seller, 
who  had  but  a  limited  title,  can  not  show  by  parol  that  the 
buyer  understood  the  extent  of  the  title  and  contracted  in 
reference  to  it. 

Edwards  v.  Richards,  W^right,  596. 

ig)  Where  a  contract  to  sell  glass  specifies  the  grade,  the 
seller  can  not  show  how  he  made  his  glass  and  that  the  buyer 


525  THE    PAROL    EVIDENCE    RULE  §419 

knew  it,   and  knew  that  his  glass  of  this  grade  was  not  of 
the  same  quality  as  other  glass. 

Tillyer  v.   Glass   Co.,   13   C.   C  90,   7   C.   D.  20!),  214. 

(h)  "Where  a  settlement  of  ciaims  for  rent  was  made  hy 
the  lessee  giving  the  lessor  a  note  and  a  conveyance,  and  the 
terms  of  the  settlement  were  evidenced  by  a  contract  in  Avrit- 
ing.  and  an  action  was  brought  on  the  note,  evidence  of  a 
parol  agreement  made  at  the  same  time  will  not  be  admitted. 
Fibre  Co.  v.  Steel  Co.,  22  C.  C.   (X.R.)   o21. 

(i)  "When  the  authority  conferred  on  an  agent  is  by  an 
instrument  in  writing  and  is  special,  parol  evidence  is  inad- 
missible to  vary  its  terms.  And  authority  to  contract  debts 
may  not  be  contradicted  by  evidence  of  a  contemporaneous 
oral  agreement  that  the  signers  should  not  be  liable,  where 
it  was  not  communicated  to  plaintiff  who  extended  credit  in 
reliance  upon  the  writing. 

Pollock  V.  Cohen,  32  0.  S.  514. 

Bank   v.  Iron  Co.,    13  X.   1'.   (X.S.)    27,  22  O.  D.  633. 

Lumber  Co.  v.  Heller,  84  0.  S.  201. 

419.  RULE  AS  TO  LAND  CONTRACTS. 

(a)  A  deed  can  not  be  varied  by  parol  in  so  far  as  it  is 
intended  to  pass  a  right.  The  consideration  clause  of  a  deed 
can  not  be  contradicted  so  as  to  affect  in  any  way  the  pur- 
pose of  the  deed,  that  is,  its  operation  as  a  conveyance. 

Sbehv  V.   Cnnnincjbam,   81    O.    R.   280,  203. 


'c 


(b)  AYhere  the  consideration  expressed  in  a  deed  is  a 
valuable  one,  the  title  comes  by  purchase ;  and  it  is  not  com- 
petent to  show  by  parol  that  in  fact  the  title  came  by  deed 
of  gift,  and  there'by  change  the  line  of  descent. 

Groves  v.  Groves,  fi-l  0.  R.  442. 

Ossnian   v.   Sclimitz,    14    C.   D.    709,   4    C.   C.    (N.S.)    502. 

Kerr  v.   Paul,   37   Bull.   171. 

(c)  Parol  evidence  to  show  that  the  consideration  was: 
not  money  and  that  the  deed  was  a  gift,  is  incompotent  be- 
cause the  effect  would  be  to  contradict  tlio  deed  as  to  the 
kind  of  consideration  therein  recited,  and  would  defeat  the 


§  419  METZLCR'S    OHIO    TRIAL    CYIDENCE  526 

statute    of   frauds    by    making    a    title    to    real   estate    to    rest 
in  parol. 

Williams   v.   Williams,   ;5   W.   L.    M.  2.18,  2   0.   1).   Fv.   478. 

(d)  Where  a  father  paid  the  purchase  price  of  land  and 

had   the   deed,   which    stated   a   valuable    consideration,    made 

by  the  seller  directly  to  a  daughter  as  a  gift,  it  was  held  that 

the  consideration  clause  of  the  deed  could  not  be  varied  by 

parol  so  as  to  change  the  operation  and  effect  of  the  deed. 

Patterson   v.   Lamson,   45   O.    S.    77. 

See   Nave   v.   Marshall,   0    0.   D.   415,   6   X.   P.   488. 

(e)  But  a  consideration  different  from  the  one  recited  in 
a  deed,  or  a  consideration  in  addition  to  that  recited,  may  be 
shown  by  parol  if  it  does  not  contradict  the  deed. 

Steele  v.  Worthinston,   2   Oh.   182. 
Vail  V.  McMillan,  17  0.  S.  617. 
Swisher    v.  Swisher,  Wright,  755. 
See  Section  428  herein. 

(f)  Parol  evidence  is  not  admissible  to  show  that,  at  the 
time  of  the  delivery  of  a  warranty  deed  regular  in  form,  the 
grantor  reserved  the  right  of  possession  for  a  time  or  a  right 

to  cut  trees. 

Jones    V.    Timmons,   21    O.    S.    506. 
Cessna   v.   Breen,   22   Bull.   278. 

(g)  Where  a  tenant  signed  a  written  lease  on  considera- 
tion of  the  landlord's  oral  promise  to  repair  the  roof,  and 
sued  the  landlord  for  breach  of  this  contract,  it  was  held 
that  such  promise  could  not  be  proved. 

Howard  v.  Thomas,   12  0.  S.  201. 

(h)  An  oral  agreement  made  at  or  before  executing  a 
lease  that  at  the  end  of  the  year  a  rebate  should  be  allowed 
from  the  rent,  can  not  be  shown. 

Strong  V.   Schmidt,   7   C.   D.  233,   13   C.   C.   302. 

(i)  In  an  action  for  commission  by  a  real  estate  agent 
under  a  written  contract  broad  enough  to  cover  any  sale, 
parol  evidence  is  inadmissible  to  show  a  contemporaneous 
agreement  to  except  a  sale  to  a  certain  prospective  purchaser. 

Smith  V.  Geis,  13  C.  C.   (N.S.)    336,  22  C.  D.  666. 


527  THE    PAROL    EVIDENCE    RULE  §421 

420.  RULE  AS  TO  INSURANCE  POLICIES.    . 

(a)  A  policy  of  insurance,  like  any  other  written  con- 
tract, must  be  construed  by  its  own  terms.  Statements  made 
by  the  agent  who  solicited  a  policy,  prior  to  and  contempo- 
raneous with  the  issue  of  the  policy,  are  inadmissible  to  vary 
its  terms  in  any  respect.  In  the  absence  of  proof  of  fraud 
or  mistake,  such  statements  are  merged  in  the  instrument. 

Insurance   Co.  v.  Hook,   62   O.   S.   256. 

Richards  v.  Hale,   1    C.  C.   (N.S.)    181,   14  C.  D.  468. 

Walrath  v.  Insurance  Co.,  9  C.  D.  233,   16  C.  C    413. 

(b)  In  an  action  on  a  policy  requiring  modifications  or 
notices  to  be  in  writing,  parol  evidence  of  conversations  be- 
tween the  parties  on  any  such  subject  wHl  be  excluded.  But 
in  a  case  framed  to  correct  an  omission  on  the  ground  of 
fraud  or  mistake,  such  evidence  is  admissible. 

Insurance  Co.  v.  Fellowes,   1  Dis.  217,   12  0.  D.  R.  584. 

Insurance   Co.   v.   Hook,   62    O.    S.   256. 

Hammel  v.  Insurance  Co.,  4  C.  C.  (N.S.)  380,  14  C.  D.  101. 

421.  RULE  AS  TO  BONDS. 

(a)  The   contract   of   a   surety   on  u   bond  is   within   the 

statute   of  frauds   and   is   to   be   strictly   construed ;    and   no 

parol  evidence  is  admissible  to  add  to,  vary  or  contradict  it 

in  any  of  its  terms. 

Williamson   v.   Hall,    1    O.    R.    100. 
Myers   v.   Parker,    6    O.    S.    501. 

(b)  When  an  executor's  bond  uescribed  the  testator  by 
an  incorrect  name,  parol  evidence  to  make  the  bond  appli- 
cable to  the  estate  of  the  testator  in  his  correct  name  was 
excluded. 

McGovnoy  v.   State,  20  Oli.  03. 

(c)  But    a    misrecital    in    an    'i. junction    l)ond    as    to    the 

amount  of  a  judgment  enjoined  may  be  corrected  where  tbc 

bond    contains   a    plain   reference   to   the   judgment.      That   is 

certain  which  can  be  made  certain. 

Williamson   v.   Hall,    1    O.   S.   100. 
See   State    v.    Wallahati,    Tappan,    4!^. 


§422  METZLER'S    OHIO    TRIAL    EVIDENCE  528 

(d)  And  .a  bond  which  by  mistake  fails  to  express  the 
actual  agreement  and  intention  of  the  parties,  such  as  a  mis- 
take in  a  name,  may  be  reformed  upon  parol  evidence  like 
other  written  instruments. 

Neininger  v.  State,  50  0.  S.  394. 

422.  RULE  AS  TO  WILLS. 

(a)  Wills  are  to  be  construed  from  the  written  language 
of  the  instrument ;  and  parol  evidence  can  not  be  admitted  to 
contradict  or  explain  the  contents  of  a  will. 

Collins    V.    Hope,    20    Oh.    402. 
Painter    v.    Painter,    18    Oil.    247. 
Charch   v.   Cliarch,   57   0.   S.   561. 

(b)  In  construing  a  will,  grammatical  accuracy  need  not 
be  observed ;  and  it  should  be  read  with  a  view  to  the  situ- 
ation and  circumstances  of  the  testator,  in  reference  to  the 
subjects  of  his  dispositions,  and  the  objects -of  his  bounty. 
With  these  collateral  aids  to  a  correct  interpretation,  the  will 
must  speak  for  itself,  and  the  intention  of  the  testator  be 
gathered  from  what  appears  on  its  face.  To  allow  its  lan- 
guage to  be  varied  or  contradicted,  or  omissions  to  be  sup- 
plied, or  apparent  ambiguities  to  be  removed  by  parol 
evidence,  would  in  effect  repeal  the  law  requiring  it  to  be 
in  Avriting,  and  introduce  all  the  uncertainty,  fraud  and  per- 
jury which  the  statute  was  designed  to  prevent. 

\Yorman  v.  Tea.Gfarrlen,  2  0.  S.  380. 

Reinhard   v.   Reinhard.   3  X.  P.    (X.S.)    280,   15   0.   D.   741. 

(c)  From  the  familiar  rule  that  a  court  of  equity  will 
not  reform  a  will,  it  results  that  when  a  testator  clearly  ex- 
presses the  intention  that  his  property  shall  pass  to  his  chil- 
dren equally,  subject  to  charges  against  them  in  his  book  of 
advancements,  parol  evidence  is  not  competent  to  show  that 
an  advancement  charged  by  him  in  such  book  was  not  made. 

Younce  v.  Flory,   77   0.   R.   71. 
Painter  v.  Painter,    18   Oh.  247. 
Farmer  v.   Cope,   37   Bull.    132. 

(d)  Patent  ambiguities  in  a  will  must  be  solved  by  con- 
struction  and  not  by   evidence.     Hence,   neither   the   instruc- 


^29  THE    PAROL    EVIDENCE    RULE  §423 

tions  of  a  testator  to  the  scrivener  to  alter  a  former  will  nor 
its  provisions  are  admissible  to  explain  the  provisions  of  a 
later  will.  The  instructions  to  the  scrivener  as  to  the  testa- 
tor's intention  are  wholly  incompetent. 

Clark  V.  Seminary,  2  C.  D.  87,  3  C.  C.   '['rZ. 

Zacknian  v.  Dick,   15   C.  C.    (N.S.)    593,  24  C.  D.  450. 

See  Taylor  v.  Taylor,  7  K.  P.   (N.S.)   297,  19  0.  D.  829. 

(e)  Declarations  of  a  testator  can  not  be  given  in  evi- 
dence to  show  an  intention  on  his  part  to  devise  certain  real 
estate  to  particular  persons;  nor  declarations  that  he  had 
given  certain  notes  to  his  wife,  even  though  the  notes  are 
transferred  to  her  ''in  case  of  death,"  and  the  will  alludes 
to  gifts  to  her. 

Taylor  v.   Bogjrs,   20   0.   S.  516. 

Hull  V.  Hull,  9  C.  D.   19,   16  C.  C.  688. 

Hadlow  V.  Beavis,  42  Bull.  256, 

(f)  Declarations  as  to  testamentary  intentions  by  a  testa- 
tor in  advanced  age  and  in  a  feeble  condition,  made  during 
the  last  sickness  and  shortly  after  the  execution  of  the  will, 
are  admissible  to  show  the  mental  condition  of  the  testator 
at  the  time  the  will  was  executed,  but  not  to  show  an  inten- 
tion other  than  that  expressed  in  the  will. 

Kuhl  V.  Reicliert,  2  C.  C.    (X.S.)    42,  lo  C.  D.  693. 

423.  RULE  AS  TO  COMMERCIAL  PAPER— MAKERS. 

(a)  Parol  evidence  is  not  admissible  to  contradict  the 
terms  of  a  note  or  to  attach  to  it  parol  conditions.  And 
where  an  agent  acting  within  the  scope  of  his  agency  signs 
a  note  as  agent  only,  no  principal  being  named,  parol  evi- 
dence is  not  admissible  to  sbow  that  he  did  not  intend  to 
make  himself  lia])]e,  even  though  the  payee  knew  of  the 
agency.. 

Holzworth   V.  Kocli.  26  O.  S.  ?,?,. 

Collins   V.  Insurance  Co.,   17  O.  S.  215. 

See  Section  8125,  General   Code. 

Cf.  In  re  Trust  Co.,   1   O.  App.  409,  17  C.  C.    (N.S.)    324,  24  C.  I).  381. 

(b)  Where  a  married  woman  exociiles  lict-  note  for  prop- 
erty purchased,  she  will  not  be  permitted  to  tcsfify  that  she 


§423  METZLER'S    OHIO   TRIAL    EVIDENCE  530 

had  no  intention  to  charge  her  separate  estate,  for  that  would 
be  contradicting  the  note. 

Avery  v.  Vansickle,  Sfj  0.  S.  270,  276. 

Cf.  Corwin  v.  Cook,  8  Bull.  4,   12  Bull.    157. 

(c)  Where  no  fraud  or  mistake  in  the  execution  of  a 
note  is  averred  by  the  makers,  they  will  not  be  permitted  to 
set  up  an  intention  on  their  part  not  to  bind  themselves  indi- 
vidually, but  only  in  their  re[)resentative  capacity,  when  such 
intention  is  different  from  the  legal  import  of  the  writing 
on  its  face. 

Titus  V.  Kyle,   10  0.  R.  444. 

Banking  Co.   v.   Gas   Co.,    1!)   C.   C.    (N.S.)    151. 

Cf.  Aungst  V.   Creque,  72  O.  S.  5.51. 

(d)  A  partner  sold  his  interest  to  a  third  person,  receiv- 
ing his  co-partner's  iu)te  in  payment;  and  it  was  held  that 
the  maker  could  not  show  an  oral  agreement  that  the  buyer 
who  had  not  signed  the  note  was  alone  liable  on  it. 

Lillie  V.  Batos,  3  C.  C.  04,  2  C.  J).  .54. 

(e)  Parol  evidence  is  not  admissible  to  show  that  at  the 
time  of  taking  a  promissory  note  by  a  bank  for  the  payment 
of  a  loan  secured  by  sureties,  the  cashier  agreed  that  he 
would  secuie  certain  bonds  as  collateral  for  the  i)ayment  of 
the  note,  and  tluit  the  liability  of  the  sureties  should  be  sub- 
ordinate to  such  collateral. 

Martin  v.  Bank,  11  C.  C.   (X.S  )   0.3,  20  C.  T>.  .30R. 

(f)  But  where  a  note  has  been  given  the  wrong  date, 
parol  evidence  is  admissible  to  show  the  true  date.  And  the 
same  rule  would  api)ly  in  a  suit  for  reformation  of  a  note 
which  incorrectly  states  the  (bites  when  payments  are  due. 
However,  if  an  inspection  of  the  note  estal)lishes  the  mistake 
clearly,  no  other  evidence  would   be  needed. 

Jessup  V.  Dennison,  2  Dis.  150,   l.T  O.  D    B.  03. 
Keep  V.  Lyman,  0  C.  V.    (N.S.)    113,    17  C.   D.  2!t3. 

(g)  The  legal  effect  of  accepting  or  of  drawing  a  bill  of 
exchange  can  not  be  varied  by  parol.     To  this  rule,  usage  has 


531  THE    PAROL    EVIDENCE    RULE  §424 

established  an  apparent   exception   in  the   instances   where   a 
bill  is  drawn  or  accepted  by  the  cashier  of  a  bank. 

Robinson  v.  Bank,  44  0.  S.  441,  448. 

Cunimings  v.  Kent,  44  O.  S.  92. 

Bamhisfel   v.  Bank,  7   C.  D.  533,   14   C.  C.   124. 

(h)  Parol  evidence  is  not  admissible  to  show  that  a  draft 
was  merely  drawn  to  assign  a  claim  of  the  drawer  against 
the  drawee ;  for  a  bill  imports  a  contract  that  it  will  be  paid 
or  the  drawer  will  pay  it  after  demand  and  notice. 

Cummings  v.  Kent,  44  0.  S.  92. 

424.  RULE  AS  TO  COMMERCIAL  PAPER— INDORSERS. 

(a)  The  legal  effect  of  an  indorsement  in  blank  (in  this 
ease  a  note)  when  made  for  value  in  the  usual  course  of  busi- 
ness for  the  purpose  of  transferring  the  paper  or  giving  it 
credit,  can  not  be  varied  by  parol.  But  such  indorsement 
may  be  reformed  if  the  proof  is  clear  and  convincing. 

Farr   v.   Bicker,   40   0.   S.   205. 

Contra,    Bailey    v.    Stonenian,    41    O.    S.    148. 

(b)  When  a  note  is  made  payable  to  a  person  as  agent 
and  is  indorsed  in  the  same  way,  he  can  not  be  heard  to  ex- 
plain that  the  indorsee  knew  of  the  agency  and  the  name  of 
the  principal.  (As  to  officers  of  banks  and  corporations,  see 
Sec.  8147  of  the  General  Code.) 

Barnhisol   v.  Bank.  7   C.  D.  5.33,   14   C.  C.   124. 

(c)  Where  a  note  with  security  was  transferred  and  the 
note  was  indorsed  waiving  protest,  a  parol  agreement  to 
look  to  the  security  can  not  be  shown  as  against  his  indorse- 
ment. 

Rhanl   v.  ^fcCauley,  34  Bull.  278. 

(d)  But  parol  evidence  is  admissible  to  prove  that  the 
indorser,  as  between  himself  and  the  indorsee,  waived  demand 
and  notice  at  the  time  of  indorsing  a  note  in  blank.  Such 
waiver  may  also  be  shown  by  the  circumstances. 

Dye  V.   Scott,  35   O.   R.   104. 
Ifudson    V.    Wolcott,    30   O.    S.   018. 
See  McManifzal  v.  Brown.  45  O.  S.  409. 
Hays    V.   May,    \Vrij,Mit,  80. 


§425  METZLER'S    OHIO    TRIAL    EVIDENCE  532 

(e)  Thougli  a  party  maj^  in  some  cases  show  by  parol 
that  he  was  not  to  be  held  upon  his  indorsement,  still  his 
simple  understanding  of  the  matter  is  not  admissible.  The 
understanding  of  one  party  can  not  affect  the  other. 

Bassenhorst  v.  ^Mlby,  45  O.  S.  333,  336. 

(f)  A  guarantor  of  payment  can  not  show  by  parol  an 
understanding  that  he  should  be  liable  only  as  guarantor  of 
collectibility. 

Neil  V.  Trustees,   31   0.  S.   15. 

425.  RULE  AS  TO  RECEIPTS. 

(a)  A  receipt  for  property  or  money  may  be  explained 

by   parol    evidence.      The   transaction   attending   a   settlement 

when  a  receipt  in  full  was  given  may  be  shown ;  and  if  there 

was  a  mistake  in  the  amount,  the  receipt  is  not  conclusive. 

Stone    V.    Vance,    G    Oli.    24G. 
Babcock    V.    May,    4    Oh.    334,    346. 
Emrie   v.   Gilbert,  Wright,   7G4. 

(b)  A  receipt  in  full  is  conclusive  if  given  with  a  knowl- 
edge of  all  the  circumstances,  and  when  the  signer  can  not 
complain    that    there    was    any    mistake,     misrepresentation, 

•  fraud  or  undue  influence  to  render  it  invalid. 
Hirsch    v.   TTamilton   Co.,    12   0.   D.   670. 
Emrie   v.   Gilbert,   Wrif^Iit,   7G4. 
See   Bird   v.   Iliieston,   10  0.    S.  4 IS,   430. 
Miller   v.    Sullivan,    2G    O.    S.    639. 

(c)  A  paper  purporting  to  be  a  receipt,  but  containing  a 
complete  contract  between  the  parties  to  it,  can  not  be  ex- 
plained by  parol  evidence  unless  it  is  ambiguous. 

Stone   V.  Vnneo.   G  Oh.  24 G. 

Bird    V.  lIiK'^ton,    10  O.  S.  4 IS.   430. 

Wilson  V.  Bailey,   1    Handy,   177,   12  O.  1).  B.  88. 

Cf.    Bethel    v.    Woodwortli,    11    0.    S.    393. 

(d)  On  settlement  of  all  royalties  under  a  lease,  the  par- 
ties signed  a  writing,  which  was  a  contract  as  well  as  a  re- 
ceipt ;  and  it  was  held  that  it  could  not  be  shown  that  certain 
matters  relating  to  royalties  were  not  settled,  for  the  writing 
in  so  far  as  it  was  a  contract  could  not  be  varied  by  parol. 

Seeman  v.  Mining  Co..  12  C.  D.  206.  22  C.  C.  311. 
Coal   Co.  V.   Sunday  Creek  Co.,   12  N.  P.    (N.S.)    641. 


533  THE    PAROL    EVIDENCE    RULE  §425 

(e)  An  employe  entered  into  a  writint?  releasing  his  em- 
ployer from  a  claim  for  an  injury,  and  it  was  held  that,  in 
the  absence  of  fraud  and  mistake,  the  employe  could  not  show 
that  he  signed  such  release  upon  a  collateral  promise  of  per- 
manent employment  at  certain  wages. 

r.looni   V.   Brownell,   12   0.   D.   87. 

See  Huntington  v.  Railway,  8  0.  L.  R.  531. 

(f)  A  writing  which  acknowledges  payment  in  full  with 
cash  and  notes,  is  not  a  mere  receipt ;  and  it  is  not  proper  to 
admit  testimony  as  to  a  separate  agreement,  whereby  the 
creditor  was  to  have  the  right,  if  the  notes  were  not  paid,  to 
surrender  them  and  proceed  on  his  original  claim. 

Fitch  V.  Gottschalk,  6  C.  C.   (N.S.)   239,  IS  C.  D.  811. 

(g)  A  writing  stated,  "I  have  this  day  settled  with  E, 

and  he  has  paid  me  all  he  ow^ed  me  up  to  this  date,  and  I 

have  no  claims  or  demands  against  him  of  any  kind."     This 

is  not   a  mere  receipt,  but   contains  an   agreement   that   the 

parties  have  come  to  a  settlement  in  full  and   agreed  npon 

the  balance.     And  evidence  to  prove  that  certain  matters  of 

account  w^ere  not  included  is  not  admissible. 

Jackson  v.  Ely,  57  O.  S.  450. 

Seeman  v.  Mining  Co.,  22  C.  C.  311,   12  C.  D.  206. 

(h)  A  writing  which  is  a  release  of  all  interest  in  an 
estate  and  an  agreement  not  to  contest  the  will  is  a  contract ; 
and  it  can  not  be  contradicted  by  parol  evidence  that  the 
consideration  is  not  correctly  stated  in  the  contract. 

Cassilly   v.   Cassilly,   57   0.   S.  582. 

Cf.  Wales  V.  Bates,  3  W.  L.  J.  263,   1   O.  D.  R.  180. 

(i)  A  release  can  not  be  contradicted  or  explained  by 
parol  evidence  because  it  extinguishes  a  pre-existing  right. 
But  no  receipt  can  have  the  effect  of  destroying,  per  se,  any 
subsisting  right.  It  is  only  evidence  of  a  fact.  The  payment 
of  the  money  discharges  or  extinguishes  the  debt ;  a  receipt  for 
the  payment  does  not  pay  the  debt,  it  is  only  evidence  that  it 
has  been  paid.  Not  so  of  a  written  release ;  it  is  not  only  evi- 
dence of  the  extinguishment,  but  is  the  extinguisher  itself. 

Shehy  v.  Cunningham,  81   0    S.   280,  204. 


§426  METZLER'S   OHIO   TRIAL    EVIDENCE  534 

426.  RULE  AS  TO  BILLS  OF  LADING. 

(a)  Parol  evidence  is  not  admissible  to  prove  a  contract 

to  freight  different  from  that  expressed  in  the  bill  of  lading. 

An   nnderstanding   varying   the   provisions   of   the   bill   is   not 

admissible. 

BalKook  V.  May,  4  Oh.  334. 
Lawri'iicc  v.  McGregor,   Wriglit,   103. 

(b)  A  bill  of  lading  must  be  interpreted  and  its  meaning 
gathered  from  the  instrument  itself  without  resort  to  any 
parol  evidence,  unless  some  of  its  terms  have,  by  the  usages 
and  course  of  trade,  acquired  a  particular  signitication. 

\Yayno    v.    T1)o    Gon'l    Piko.    10    Oli.    422.    42."). 

(c)"  If  the  meaning  of  the  contract  in  a  bill  of  lading  is 
that  the  goods  shall  be  carried  by  boat  by  the  most  direct 
route,  a  parol  agreement  that  the  vessel  could  touch  at  a 
place  out  of  the  regular  course  may  not  be  shown. 

Babcock  V.  May,  4  Oh.  334. 

(d)  In  the  absence  of  fraud  and  mistake,  a  bill  of  lading 
signed  by  the  receiving  agent  of  a  carrier,  containing  no  re- 
striction upon  its  common-law  liability,  delivered  to  the  con- 
signor contemporaneously  with  the  receipt  of  the  goods  and 
acquiesced  in  by  him,  becT)mes  the  contract  of  shipment 
whether  signed  by  consignor  or  not,  and  its  terms  can  not 
be  contradicted  by  parol. 

Railway  v.  LaTourotto.  2   C.  C.  270.   1    C.  D.  4R6. 
Stevens  V.  Railway.  20  C.  C.  41,   11  C.   I).   168. 
Railroad  v.  Pontius,  10  O.  S.  221. 

(e)  But  a  bill  of  lading  is  a  contract  including  a  receipt; 
and  in  so  far  as  it  is  a  receipt  as  well  as  in  its  recital  of  fact, 
it  may  be  contradicted  by  parol  evidence. 

Page  V.  Eailroad,  4  W.  L.  M.  644,  2  0.  D.  R.  716. 

Dean  v.   King,  22  O.   S.   118. 

Jkit   see    Section    8093-22,   General    Code. 

(f)  A  statement  in  a  bill  of  lading  that  the  goods  were 
received  in  good  order  may  be  contradicted,  and  the  goods 
shown  to  have  been  damaged  before  delivery  to  the  carrier. 

Wood  V.  Perry.  Wright.  240. 

But   see   Section    8003-22,   General    Code. 


535  THE    PAROL    EVIDENCE    RULE  §426 

(g)  All  agent  of  boat  owners  has  no  authority  to  issue 
bills  of  lading  for  freight  not  on  board;  and  the  owners  are 
not  bound  thereby,  nor  are  they  estopped  by  such  careless- 
ness to  show  the  facts,  even  though  the  shipper  was  misled. 

Dean   v.   Kinp.   22   O.   S.    llS. 

But    sfc    b^octiou    i^!t'.i;{  22,   Ci'iicral    Code. 

(h)  But  after  signing  a  bill  of  lading,  a  common  carrier 
can  not  relieve  himself  from  liability  on  the  ground  that  the 
goods  were  never  received  by  liim,  except  by  the  clearest 
proof. 

Railroad  v.  Dodds,  1  C.  S.  C.  "R.  47.  13  O.  D.  V..  407. 

But    si'e    Section    81MI3-22,   Genera!    (ode. 

(i)  If  the  goods  were  never  shipped,  but  were  listed  in 
the  bill  of  lading  fraudulently  after  it  had  been  signed  by 
an  agejit  of  the  carrier,  it  is  a  nullity;  and  such  facts  may 
be  proved  in  defense. 

Adams  v.  Brirr  Pilgrim,  10  W.  L.  J.  141,   1    O.  D.  Tt.  477. 

(j)  The  question  whether  the  consignor  and  vendor  re- 
served the  jus  disponendi  is  one  of  intention  to  be  gathered 
from  all  the  facts  and  circumstances  of  the  transaction;  the 
terms  of  the  bill  are  to  be  taken  as  admissions  of  the  con- 
signor and  are  entitled  to  great  weight,  but  are  not  conclu- 
sive. 

Emory   v.    Bank.   2.5   0.    S.    3fiO. 

(k)  A  bill  of  lading  is  as  to  the  consignee  a  mere  ad- 
mission or  declaration  of  the  consignor  as  to  his  purpose  in 
shipi)ing  and  is  not  a  contract;  such  admission  may  therefore 
be  rebutted  by  the  circumstances  of  the  transaction, 

Emery  v.  Bank,  25  0.  S.  360,  366. 


CHAPTER  XXX 

THE    PAROL    EVIDENCE    RULE— EXCEPTIONS. 

427.  Introductory. 

428.  Consideration  in  deeds. 

429.  Coni^ideration   in  notes. 

430.  E.xpress  parol  trusts. 

431.  Implied  trusts. 

432.  Fraud  and  mistake. 

433.  Conditional  delivery. 

434.  Subsequent  contract. 

435    Incomplete  writing — Contracts  in  general. 

436.  Incomplete  wiitiiig — Transfers. 

437.  Incomplete  writing— .Suretyship. 
438    Custom — General  rule. 

439.  Custom  and  the  law. 

440.  Notoriety  of  custom. 

441.  Usages  of  trade. 

442.  Custom — Expert   witnesses. 

443.  Custom — Practice. 

444.  Ambiguity. 

445.  Surrounding  circumstances — Contracts. 

446.  Surrounding  circumstances — duaranties. 

447.  Surrounding  circumstances— Wills. 
44S.  Surrounding  circumstances — Deeds. 

449.  Construction  by  parties. 

450.  Identification  of  parties. 

451.  Relation  of  jiarties. 

452.  Subject-matter — General   rule. 

453.  Subject-matter — Contracts  in  general. 

454.  Subject-matter— Wills 

455.  Subject-matter — Insurance    policies. 

456.  Subject-matter — Land  contracts. 

457.  Subject-matter — The  debt. 

427.  INTRODUCTORY. 

(a)  The  exceptions  to  the  general  rule  stated  in  the  pre- 
ceding chapter  .show  that  the  rule  is  not  without  exceptions. 
The  principal  exceptions  may  be  briefly  stated  as  follows:  Oral 
or  extrinsic  evidence  is  admissible  to  show  the  existence  of 

536 


537  THE    PAROL    EVIDENCE    RULE  §428 

fraud,  duress,  illoprality,  mistake,  or  want  of  capacity;  to  show 
the  existence  of  a  separate  agfreemeiit,  Avhen  the  writing  is 
not  complete;  to  prove  a  condition  precedent  to  the  attaching 
of  the  instrument ;  and  to  prove  a  subsequent  enforceable 
agreement  to  rescind  or  modify.  In  the  construction  of  con- 
tracts, oral  evidence  is  admissible  to  rebut  a  disputable  pre- 
sumjition ;  to  show  what  things  are  customarily  treated  as 
incidental  to  the  principal  thing,  that  is.  custom  and  usage; 
to  aid  the  court  in  discovering  intention  in  case  of  latent 
ambiguity;  and  to  inform  the  court  as  to  the  parties  and  the 
condition  of  the  subject-matter. 

428.  CONSIDERATION   IN   DEEDS. 

(a)  Tn  beginning  the  examination  of  the  cases  on  the  sub- 
ject of  consideration,  it  will  add  to  clearness  to  call  attention 
to  the  fact  that  this  subject  of  consideration  is  not  what  is 
ordinarily  called  an  exception  to  the  general  rule;  it  is,  how- 
ever, as  important  as  any  of  the  exceptions  and  shows  the 
limits  of  the  general  rule,  which,  for  jiresent  purposes,  may  be 
stated  briefly  as  follows:  A  written  instrument,  in  so  far  as 
it  transfers  a  right  or  is  intended  to  be  evidence  of  a  right, 
can  not  be  contradicted  by  extraneous  facts. 

(b)  In  stating  the  general  rule  as  to  a  deed,  it  may  be  said 
that  a  party  is  not  permitted  to  contradict  his  deed  in  so  far 
as  it  is  intended  to  pass  a  right  or  to  be  the  evidence  of  a  con- 
tract. This  rule  prevents  the  nse  of  parol  evidence  to  change 
a  deed  of  purchase  to  a  deed  of  gift. 

Sholiy   V.   CunninprTiam.   PI    0.   S.   289,   203. 

(c)  But  a  deed  is  not  conclusive  evidence  of  everything 
it  contains.  When  the  consideration  clause  in  a  deed  comes 
in  question  collaterally  and  not  for  any  purpose  of  affecting 
the  deed  as  a  conveyance,  parol  evidence  is  admissible. 

Shehy    v.   Cunniii<,'bam,   81    0.    S.   2Sn.    -in.-). 

See  Williams   v.  Williams,   3  W.  L.  M.  2.58,  2   0.  D.   R.  478. 

See  Section  410(o)   herein. 

(d)  In  an  action  for  the  distribution  of  a  decedent's 
estate  coming  by  inheritance,  parol  evidence  is  admissible  to 
show  that  a  deed  which  upon  its  face .  expresses  a  valuable 


§428  METZLER'S    OHIO    TRIAL    EVIDENCE  538 

consideration  was  in  fact  a  gift  for  natural  love  and  affection 

as  an  advancement. 

Slieliy  V.  Cunninfrham,  10  C.  C.    (N.S.)    311,  20  C.  T).  212. 

Slieliy  V.  Cunningliam,  81   0.  S.  280. 

Sec  Parsons  v.   l*ar.sons,  52  0.  S.  470. 

Williams   V.   Williams,  3    \V.   L.  M.  258,   2   0.   1).   R.   478. 

(e)  A  deed  reciting  a  pecuniary  consideration  may  be 
shown  by  parol  to  be  one  of  several  partition  deeds  without 
other  consideration  than  the  mutual  releases.  The  line  of 
descent  is  not  broken  by  partition  of  an  estate ;  and  the  title 
of  a  parcener  in  his  share  is  the  same  as  it  had  been  as  an 
undivided  interest. 

Carter   v.    Day.   .^0   O.    ?;.    nfi. 

(f)  Where  a  father  made  a  deed  to  his  absent  daughter 
and  placed  it  on  record,  the  question  arose  after  her  death 
vi'hether  she  had  accepted  the  deed;  and  as  bearing  on  that 
question,  the  court  admitted  evidence  to  show  that  the  deed 
was  a  gift,  notwithstanding  the  consideration  expressed  was 
valuable. 

:Mitchen   V.   Eyan.   3   O.   S.   377. 

(g)  Where  grantee's  deed  which  recited  a  valuable  con- 
sideration w'as  offered  in  evidence  against  him  to  show  what 
he  paid  for  land,  it  was  held  that  grantee  might  offer  evi- 
dence that  the  true  consideration  was  love  and  affection. 
The  land  conveyed  by  the  deed  was  not  in  controversy. 

Harrison  v.  Castner,  11   O.  S.  330. 

(h)  As  a  rule  a  deed  does  not  execute  any  of  the  stipu- 
lations of  the  vendee  as  to  the  consideration  to  be  paid  for 
property.  The  obligation  to  pay  purchase  money  is  not 
merged  into  the  deed.  The  covenant  to  convey  is  performed 
by  the  conveyance ;  but  the  covenants  relating  to  other  things 
are  not  thus  performed. 

Brumbaugh  v.  Chapman,   45   0.   S.  368,   375. 

(i)  A  written  agreement  for  the  sale  of  land  is  not 
merged  into  the  deed  as  to  the  promise  of  vendee  in  regard 
to  the  consideration,  even  when   it  provides  that  he  has   as- 


539  THE    PAROL    EVIDENCE    RULE  §428 

sumed  to  pay  an  existing  lien  as  a  part  of  the  purchase  money. 
Such  written  agreement  is  competent  evidence,  and  if  it  is 
lost,  its  terms  may  be  proved  by  parol. 

Conklin   v.  Hancock.   67  0.  S.  455. 

Reid   V.   Sycks.   27    O.   S.   285. 

(j)  But  in  a  case  where  the  agreement  to  pay  off  the 
incumbrance  was  verbal,  it  was  held  that  it  could  not  be 
shown,  as  that  Avould  contradict  the  covenant. 

Hott  V.  :\rcDonoiigh.  3  C.  C.  177,  2  C.  T).  100. 

See  hon<r  v.  Moler.  5  0.   S.  271. 


'e 


(k)  The  contrary  was  held  in  an  action  on  a  covenant 
against  incumbrances,  when  parol  evidence  was  admitted  to 
show  that  the  grantee  verbally  assumed  an  unexpired  lease 
on  a  part  of  the  premises  before  delivery  of  the  deed  and  as 
a  condition  thereof.  It  was  held  that  the  evidence  was  not 
inconsistent  with  the  covenant,  but  was  in  effect  a  discharge 
as  to  such  lien. 

McKenzie  v.  Bucliamann,  5  0.  App.  270,  25  C.  C.  (N.S.)  529,  27  C. 
1).   303. 

Cf.  Xegley  v.  .Teflfers,  28  0.  S    00. 

(1)  A  landowner  deeded  his  farm  to  defendant  to  place 
the  legal  title  in  him  as  an  agent,  who  was  to  sell  it  and 
account  for  the  proceeds;  and  it  was  held  in  an  action  at  law 
that  the  landowner  could  show  by  parol  the  agency  of  the 
grantee  and  that  he  had  not  accounted  for  the  whole  of  the 
selling  price. 

Davis  V.  Coffiold.  C^  W.  L.  J.  31 S.  1  O.  D.  "R.  267. 

(m)  A  deed  expressing  a  valuable  consideration  may  be 
shown  to  be  a  deed  in  trust,  or  it  may  be  impeached  as  in 
fraud  of  creditors;  and  it  has  been  held  that  when  so  im- 
peached, the  deed  could  not  be  sustained  by  proving  a  con- 
sideration of  natural  love  and  affection. 

Pvvan  V.  O'Connor,  41   0.  R.  368. 

Starr  v.  \Vrif,'ht,  20  0.  S.  07. 

Burrage  v.  l>card.sley,   16  Oh.  438. 

(n)  And  where  a  nominal  consideration  is  stated  in  a 
deed  passing  property  from  debtor  to  creditor,  it  is  not  eon- 


§429  METZLER'S    OHIO    TRIAL    EVIDENCE  540 

elusive  in  an  action  to  set  aside  the  deed  on  the  ground  of 
fraud ;  and  parol  evidence  is  admissible  to  show  other  con- 
siderations.    The  same  rule  applies  to  a  bill  of  sale. 

Cole   V.   Bank,    15    C.   C.    (N.S.)    315,   344. 

Grote  V.  Meyer,  9  A.  L.  R.  623,  6  O.  D.   R.   1025. 

Hicks  V.  Cubbon,  2  A.  L.  R.   121,  4  O.  D.  R.  408. 

Contra,    14   Bull.    167,   32   Bull.    100. 

(o)  The  conclusion  is  that  the  consideration  clause  in  a 
deed  of  conveyance  is  conclusive  for  the  purpose  of  giving 
effect  to  the  operative  words  of  the  deed,  but  for  every  other 
purpose  it  is  open  to  explanation  by  parol  proof,  and  is 
prima  facie  evidence  only  of  the  amount,  kind  and  receipt 
of  the  consideration. 

Shehy  v.  Cunningham,  81   0.  S.  289. 

429.  CONSIDERATION   IN   NOTES. 

(a)  Parol  evidence  is  admissible  to  show  the  considera- 
tion of  a  note ;  and,  as  against  one  not  a  bona  tide  holder,  to 
show  that  the  consideration  in  whole  'or  in  part  has  failed. 

Holzworth  V.  Koch,  26  0.  S.  33. 
Hyde   v.   Bank,  32    Bull.  217. 
Chaffee   v.   Garrett,   6   Oh.   421. 

(b)  Where  A  executed  a  note  to  B  which  was  to  be 
assigned  to  C  on  his  paying  a  sum  of  money  and  doing 
certain  work,  it  was  held  in  a  suit  on  the  note  by  C  that  A 
could  show  his  non-performance. 

Brown   v.   Willis,    13   Oh.   26. 

(c)  Parol  evidence  is  admissible  to  show  that  the  con- 
sideration for  a  note  was  an  advancement  made  by  the  payee 
to  the  wife  of  the  maker,  and  that  it  was  understood  that  the 
note  was  given  as  a  receipt.  But  the  proof  must  be  clear 
and  convincing. 

Martin    v.   Scutkler,    14   O.   T).   283. 

Wright  V.   Merciiant,  5   W.   L.  M.   194,  2  O.  D.   R.   742. 

Medill    V.   Fitzgerald,   8   C.    D.    129,    15   C.   C.   415. 

(d)  Where  parties  to  a  loan  agree  upon  a  rate  of  interest 
greater  than  is  allowed  by  statute,  and  execute  a  note  for  a 


541  THE    PAROL    EVIDENCE    RULE  §430 

rate  within  the  statute,  parol  evidence  is  admissible  to  show 
the  fact ;  but  the  proof  must  be  clear  and  satisfactory. 

Insurance  Co.  v.  Shotts,  8  A.  L.  R.  321,  G  O.  D.  R.  813. 

Boone  v.  Andrews,  ]0  C.  C.   (X.S.)    377,  20  C.  D.   106. 

Contra,  2  Handy,  94,  3  Bull.  939. 

(e)  It  is  said  that  an  indorser  may  show  against  his  in- 
dorsee or  one  with  notice  that  his  indorsement  was  without 
consideration;  for  this  is  no  more  than  may  be  done  by  a 
maker,  drawer  or  acceptor  under  like  circumstances. 

Farr   v.   Ricker,   4G   0.   S.   2G5,   267. 

(f)  Under  a  general  averment  of  want  of  consideration, 
any  evidence  which  tends  to  impeach  or  sustain  the  consider- 
ation is  admissible.  But  if  the  evidence  offered  shows  only  that 
there  was  no  benefit  to  the  promisor,  and  does  not  exclude 
the  possibility  of  detriment  or  loss  to  the  promisee,  it  is  not 
sufficient. 

Chamberlain   v.   Railway,   If)   O.   S.   225. 
Dalrymple  v.  Wyker,  60  O.  S.  108. 

430.  EXPRESS  PAROL  TRUSTS. 

(a)  An  express  trust  engrafted  on  an  absolute  deed  may 
be  shown  by  ])arol  evidence.  But  equity  requires  that  the 
evidence  shall  clearly  and  convincingly  show  that  contempo- 
raneously with  the  execution  of  the  deed  the  terms  of  the 
trust  were  declared  and  the  beneficiaries  designated. 

Fleming   v.   Donolioo,  5   Oli.  2.")."). 

Russell     V.     I'.ru.T,    64    ().    S.    1. 

llarvcy    v.   rjardncr,   41    ().   S.   642. 

1  .)u;.'lirtian    v.    Boii^^iuiian,   6!)    ().   S.   273. 

Richards  v.  Parsons,  7  O.  App.  422.  29  O.  C.  A.  3.59. 

(b)  In  this  state,  notwithstanding  the  statute  of  frauds, 
it  is  competent  to  establish  by  parol  evidence  that  a  deed  of 
conveyance  absolute  in  form  was  executed  upon  the  consider- 
ation that  the  property  conveyed  was  to  be  held  in  trust  for 
the  grantor  and  reconveyed  on  demand. 

Mathews  v.  Leaman,  24  0.  S.  615. 
Ryan  v.  O'Connor,  41   O.  S.  36.S. 


§430  METZLER'S    OHIO    TRIAL    EVIDENCE  542 

(c)  Declarations  of  a  grantor  made  when  he  transferred 
land  to  his  sons  are  admissible  to  prove  that  it  was  in  trust 
for  the  use  and  benefit  of  their  wives,  but  subsequent  declara- 
tions are  not. 

Harvey   v.   Gardner,  41    ().  S.  642. 

Cf.   Paddock   v.   Adams,   .Ifi  O.   S.   242. 

(d)  When  a  person  purchases  property  with  his  own 
funds  and  places  the  title  in  the  name  of  a  stranger,  the  legal 
presumption  is  that  he  made  such  purchase  for  his  own  use, 
and  that  the  property  is  held  in  trust  fo.'  him.  But  the  pre- 
sumption may  be  rebutted. 

Creed  v.   Bank,   1    0.   S.   1. 

Kraig  v.  Hughes,  11  O.  1).  002,  8  N.  P.  680. 

Duvelnieyer  v.  Duvelmeyer,  5  K.  P.  89,  7  0.  Y).  426. 

(e)  But  where  the  conveyance  is  made  by  a  man  to  a 
member  of  his  own  family,  the  presumption  is  that  the  prop- 
erty is  intended  as  a  gift  or  advancement.  The  presumption 
may  be  rebutted;  and  each  case  has  to  be  determined  from 
all  the  facts  and  circumstances. 

Creed   v.   Bank,   1   0.   S.    1. 

Cf.   IMiller   V.    Stokely,    5    0.    S.    Ifl4. 

Bernhardt  v.  Bernhardt,  7  C.  C.  (N.S.)  .-)17,  IS  C.  IX  (iStt. 

(f)  A  conveyance  for  a  recited  valuable  consideration  to 
one  who  is  a  stranger  to  grantor  may  be  shown  by  parol 
to  be  voluntary,  and  a  trust  will  arise  unless  there  is  evidence 
of  a  gift.  But  where  the  deed  is  absolute  and  is  in  consider- 
ation of  natural  love  .and  affection,  it  is  said  that  a  resulting 
trust  can  not  be  shown  against  it. 

Bayles  v.  Grossman,  5  A.  L.  P.   13,  5  0.  D.   R.  354. 
Miller   V.   Stokely,   5   O.   S.    194. 

(g)  The  answer  of  a  party  in  a  former  suit  and  signed 
by  him  is  admissible  to  prove  that  a  deed  is  a  deed  of  trust, 
when  the  deed  and  the  land  conveyed  by  it  are  in  contro- 
versy in  the  case  before  the  court. 

Broadnip   v.   Woodman,   27   0.  S.  m^. 

(h)  Parol  evidence  is  admissible  to  show  that  an  abso- 
lute bequest  was  on  the  legatee's  promise  to  hold  it  in  trust 


543  THE    PAROL    EVIDENCE    RULE  §  431 

for  others;  but  the  proof  must  be  clear,  convincing  and  con- 
elusive. 

Vance  v.  Park,  S  C.  D.  425,  15  C.  C.  713. 

Collins  V.  Hope,  20  Oli.  403. 

(i)  And  the  contemporaneous  declarations  of  the  testator, 
that  the  bequest  Avas  made  for  the  benefit  of  a  third  person 
upon  the  promise  of  the  legatee  to  hold  it  in  trust,  are  ad- 
missible ;  so  also  are  the  subsequent  declarations  of  the 
legatee. 

Winder  v.  Scholey,  83  O.  S.  204. 

(j)  A  trust  in  a  bank  deposit  may  be  proved  by  parol. 
Where  "B  for  H"  deposited  money  in  a  bank,  and  stated 
that  he  desired  to  make  a  deposit  for  his  brother,  and  kept 
the  bank-book  in  a  box  to  which  the  brother  had  access,  it 
was  held  that  B  was  a  trustee  of  the  fund  for  H. 

Herrmann  v.  Bank,  16  N.  P.   (N.S.)   47. 

431.  IMPLIED   TRUSTS. 

(a)  When  a  trust  arises  by  operation  of  law,  it  may  be 
proved  by  parol.  Where  A  furnished  to  B  money  to  be  in- 
vested in  land,  which  is  so  invested,  B  taking  the  title  in 
himself,  the  title  thus  acquired  is  held  in  trust  for  A.  And 
upon  the  death  of  B,  without  the  execution  of  the  trust,  the 
title  Avill  descend  to  his  heirs  incumbered  with  the  trust 
estate. 

Xewton  V.  Taylor,  32  O.  S.  399. 
Williams  V.  Van  Tiiyl,  2   0.   S.   337. 

(b)  An  implied  or  constructive  trust  may  be  established 
from  the  acts  of  a  party  who  has  obtained  money  upon  the 
faith  of  his  agreement  to  buy  lands  in  the  name  of  his  wife, 
and  having  bought  them,  takes  the  title  to  himself. 

Newton   v.  Taylor.  32  O.   P.  309. 

(c)  Parol  evidence  may  be  introduced  to  show  that  land 
bought  in  the  names  of  members  of  a  firm  was  purchased 
with  the  funds  of  the  partnership  and  for  its  use  and  owner- 
ship. 

Tcare  v.  fain,  7  C  C.  375,  4  C.  D.  643. 

See  Rammelsburg  v.   Mitchell,  29  O.   S.  22,  52. 


§432  METZLER'S    OHIO    TRIAL    EVIDENCE  544 

(d)  Parol  evidence  is  admissible  to  show  that  the  grantee 
of  property  in  fact  holds  it  in  trust  for  charitable  uses,  but 
the  proof  must  be  conclusive.  If  the  grantee  is  a  Catholic 
archbishop,  the  canons  and  decrees  of  his  church  as  to  church 
property  are  competent  to  show  the  nature  of  the  trust. 

Mannix  v.  Purcell,  46  0.  S.   102. 

(e)  A  resulting  trust  arising  from  the  payment  of  one 
half  of  the  purchase  money  may  be  established  by  parol  evi- 
dence. Equity  wull  only  recognize  a  trust  as  resulting  to  a 
contributor  of  a  part  of  the  purchase  money  when  the  amount 
is  a  definitely  ascertainable  aliquot  part. 

Byers  v.  Wackmnn,  Ifi  0  R.  440. 
RcvTiolds  V.  Morris,  17  O.  S.  510. 
Coolidge  V.  Sniitli,  5  X.  P.    (X.S.)    481,  18  O.  D.  ini. 

(f)  A  wife  had  paid  half  of  the  consideration  for  real 
estate  and  had  secured  the  remainder  by  executing  a  mort- 
gage on  the  property  purchased;  the  deed  had  been  executed 
to  her  husband  without  her  consent ;  it  was  held  that  an 
equitable  estate  pro  tanto  became  vested  in  her  by  resulting 
trust. 

McGovern   v.   Knox,  21    0.   R.   547. 

{g)  In  an  action  for  the  redemption  of  land  sold  for 
taxes,  parol  evidence  is  admissible  to  show  that  the  legal 
title,  though  held  by  another  at  the  time  of  the  tax  sale,  was 
held  in  trust. 

Plumb  V.  Robinson,   13   0.  S.   298. 

432.  FRAUD  AND  MISTAKE. 

(a)  Prior  negotiations  are  excluded  only  on  the  issue  of 
a  contract  and  its  terms,  and  not  where  the  issue  is  whether 
money  was  obtained  by  fraudulent  representations ;  to  prove 
which  all  that  took  place  between  the  parties  may  be  intro- 
duced in  evidence  to  explain  th(^  conduct  of  the  parties. 

Home  &  Dower  Ass'n  v.  Kirk,  9  Bull.  48,  8  0.  D.  R.  592. 
Home  &  Dower  Ass'n  v.  Reams,  7  Bull.  8,  8  O.  D.  R.  272. 

(b)  In  an  action  to  reform  a  substituted  contxact  for 
fraud  and  mistake,  the  original  writing  may  be  given  in  evi- 


545  THE    PAROL    EVIDENCE    RULE  §432 

dence,  and  also  the  subsequent  acts  done,  or  procured  to  be 
done,  by  the  party  charged  with  the  fraud,  and  which  tend 
to  prove  the  fraud  or  mistake. 
Railroad    v.    Steinfeld,   42    0.    S.   449. 

(c)  Where  an  insurance  policy  by  mistake  names  an 
agent  as  the  insured,  evidence  of  the  conversation  of  the 
parties  in  relation  to  the  object  of  the  policy  and  the  interest 
to  be  insured  is  admissible  with  a  view  to  a  reformation  of 
the  policy. 

Insurance  Co.  v.  Boyle,  21   0.  S.   119. 

(d)  Parol  evidence  is  admissible  that  an  agent  soliciting 
subscriptions  for  a  railroad  falsely  stated  that  he  had  seen 
the  plans  of  the  road,  and  that  such  plans  contained  culverts 
and  bridges  at  the  farm  of  defendant,  in  reliance  on  which 
defendant  signed  an  agreement. 

Freeman  v.  Mutli,  3  Bull.  014,  7  0.  D.  R.  555. 

(e)  But  one  who  is  negligent  in  signing  a   contract   or 

who  reposes  too  much  confidence  in  the  promisee  and  is  led 

to  sign  without  carefully  considering  its  terms,  will  not  be 

permitted  to  introduce  evidence  to  vax'y  the  contract  in  an 

action  at  law. 

Cassilly  v.  Cassilly,  57  0.  S.  5S2. 
Church    Co.    v.   Shartel.   Iddings.    117. 
Cf.    Baldwin   v.    Snowden,    11    0.   S.  203. 

(f)  "Where  a  reservation  of  a  power  of  sale  by  a  mort- 
gagor is  not  on  the  face  of  a  chattel  mortgage,  but  is  merely 
understood  and  agreed  by  the  parties,  the  chattel  mortgage 
is  fraudulent  and  void ;  and  these  facts  may  be  shown  by  parol 
evidence.  The  conduct  of  the  parties  in  relation  to  the  subject- 
matter  of  the  mortgage  may  be  admitted. 

Freeman  v.  Bawson,  5  0.  S.   1. 

(g)  Where  the  description  in  a  mortgage  does  not  em- 
brace the  land  intended  to  be  mortgaged,  but  embraces  other 
land  which  the  mortgagor  does  not  own,  parol  evidence  is 
competent  to  establish  such  mistake. 

Davenport    v.    Sovil,   0   O.    S.    4.59. 


§433  METZLER'S    OHIO    TRIAL    EVIDENCE  546 

(h)  Parol  evidence  of  a  mistake  in  the  rtturn  of  an  ap- 
praisement, and  also  in  the  deed  whereby  a  tract  of  land 
neither  sold  nor  paid  for  is  included,  may  be  received  in  a 
snit  to  correct  the  mistake. 

Gill  V.  Pelkey,  54  0.  S.  348. 

Stites    V.    Wiedner,    35  ^0.    S.    555. 

(i)  Where  a  grantee  had  agreed  as  part  of  the  considera- 
tion not  to  use  the  property  for  a  saloon,  but  by  mistake  and 
fraud  did  not  execute  such  agreement  when  the  deed  passed, 
it  is  provable  by  parol. 

Taylor  v.  Becker,  6  Bull.  25,  8  0.  D.  K.  151. 

(j)  The  presumption  being  that  the  contract  as  reduced 
to  writing  embodies  the  real  intention  of  the  parties,  courts 
should  not  proceed  on  the  ground  of  mistake  without  very 
clear  and  satisfactory  proof  of  its  existence. 

Davenport   v.   Sovil.   C,   O.   R.   450. 

Pitts  V.  Langdon,  2  0.   D.  4Sl.  7  N.  P.  304. 

Heinrichsdorf  v.  Stengel,  12  N.  P.   (X.S.)    55,  22  O.  D.  667. 

433.  CONDITIONAL   DELIVERY. 

(a)  Parol  evidence  is  admissible  in  an  action  between  the 
parties  to  show  that  a  written  instrument,  executed  and  de- 
livered and  absolute  on  its  face,  was  conditional  and  was  not 
to  take  effect  until  another  event  should  take  place. 

Metzper  v.  Pxoherts,  5  C.  C.    (X.S.)    344,  16  C.  D.  675,  676. 
DeHavon  v.  Coup,  6  A.  L.  S.  593.  5  0.  D.  R.  562. 

(b)  In  an  action  to  collect  rent,  evidence  is  admissible 
for  the  purpose  of  showing  that  a  contemporaneous  parol 
agreement  was  made  at  .the  time  the  written  lease  was  ex- 
ecuted by  which  the  lease  was  only  to  be  used  in  organizing 
a  corporation  and  afterward  transferring  the  same  to  it,  and 
under  no  circumstances  to  be  a  valid  lease  between  the  orig- 
inal parties. 

■  Metz£rer  v.  Roberts,  5  C.  C.    (X.S.)   344,  16  C.  D.  675. 

(c)  Evidence  is  admissible  that  a  contract  for  the  sale  of 
real  estate  was  handed  over  on  an  oral  agreem.ent  that  it 
should  not  be  binding  until  some  future  step  was  taken. 

Hovekamp  v.  Elshoff.  4  0.  D.  171,  3  N.  P.  158. 


547  THE    PAROL    EVIDENCE    RULE  §434 

(d)  Parol  evidence  may  be  admitted,  under  Section  8121 
of  the  General  Code,  to  show  that  the  delivery  of  a  note  was 
conditional  and  that  the  note  was  not  to  become  operative 
except  upon  the  happening  of  a  certain  event.  And  the  rule 
is  not  changed  when  the  note  is  secured  by  chattel  mortgage. 

Shive  V.  Merville,  15  C.  C.   (X.S.)   535,  24  C.  D.  193,  1  0.  App.  33. 
Piano  Co.  v.  Edgar,  12  C.  C.   (N.S.)    37,  21   C.  D.  295. 
See  Heisel  v.  Heisel,  9  Bull.  110,  8  O.  D.  R.  653. 

(e)  A  note  was  executed  by  two  officers  of  a  corporation, 
and  handed  by  them  to  the  agent  of  the  payee  to  secure  the 
signature  of  the  secretary.  It  was  held  that  parol  evidence 
was  admissible  to  show  that  the  note  was  not  to  be  consid- 
ered as  delivered  until  the  signature  of  the  secretary  was 
obtained. 

Brick   Co.  v.  Foundry,   7  A.   L.   R.  548,   G  0.   D.   R.   713. 

(f)  But  it   is  not  proper   to   admit   evidence   of  a   parol 

agreement  made  at  the  execution  and  delivery  of  a  note,  by 

which  it  was  to  become  null  and  void,  unless  within  a  given 

time  the  makers  were  able  to  realize  a  given  sum  of  money 

from   the   property  purchased   and  for   which   the   note   was 

given. 

Beecher  v.  Dunlap,  52  0.  S.  64. 
Cunimings  v.  Ritter,  33  Bull.  202. 
Harley  v.  Weber,   1   C.  D.  3G0,  2  C.  C.  .i7. 

(g)  And  a  verbal  agreement  made  contemporaneously 
with  the  execution  of  a  promissory  note  that  it  may  be  dis- 
charged in  some  other  way  than  by  the  payment  of  money, 
while  it  remains  executory,  is  no  defense  to  an  action  on  the 
note,  but  when  fully  executed  it  operates  as  payment  or 
accord  and  satisfaction. 

Wettstein   v.   Bank,  20   C.    C.    (N.S.)    201. 

434.  SUBSEQUENT  CONTRACT. 

(a)  Subsequent  to  the  execution  of  a  written  contract,  it 
is  competent  for  the  parties  by  a  new  contract,  although  not 
in  writing,  either  to  abandon,  waive  or  annul  the  prior  con- 
tract, or  vary  or  qualify  the  terms  of  it  in  any  manner.  And 
where  the  verbal  contract  only  changes  or  modifies  some  of 
the  terms  of  the  original  contract,  it  is  to  be  proved  by  the 


§434  .  METZLER'S    OHIO    TRIAL    EVIDENCE  548 

verbal   agreement  taken   in   connection  with  the  written  con- 
tract. 

Thurston  v.  LiKhvijr,  6  O.  S.  1,  5. 

See   Insurance   Co.   v.   Hover,  66   ().   S.   344. 

(b)  A  \erbal  agreement,  to  be  effectual  as  a  waiver,  vari- 
ation, or  change  in  the  stipulations  of  a  prior  written  con- 
tract between  the  parties,  must  rest  ujion  some  new  and 
distinct  legal  consideration,  or  must  liave  been  so  far  exe- 
cuted or  acted  upon  by  the  parties  that  a  refusal  to  carry 
it  out  would  operate  as  a  fraud  upon  one  of  the  parties. 

Tliurston  v.  Ludvvig,  6  0.  S.  1. 

(c)  Where  the  original  contract  is  in  writing  as  required 
by  the  statute  of  frauds,  it  may  be  varied  as  to  the  time  of 
payment,  or  wholly  waived  or  discharged  as  to  such  pay- 
ment by  a  subsequent  parol  contract  founded  on  a  new  con- 
sideration. 

Xegley  v.  Jeffers,  28  0.  S.  00,   100. 
Reed  v.  McGrew,  5  Oh.  376. 

(d)  Where  land  has  been  sold  and  conveyed  and  by 
written  contract  the  grantee  is  not  to  pay  a  balance  due 
until  certain  incumbrances  are  removed,  and  there  is  made 
a  subsequent  verbal  agreement  between  the  parties  by  the 
terms  of  which  the  vendee,  for  a  valuable  consideration  re- 
ceived, agreed  to  waive  his  right  to  insist  on  the  performance 
of  such  conditions  precedent,  and  agreed  to  take  the  property 
subject  to  the  incumbrances  and  pay  the  balance  due,  is  not 
a  contract  within  the  statute  of  frauds  and  may  be  proved 
by  parol. 

Negley   v.   Jeffers,   28   0.    S.   90. 

Cf.  J\icKenzie  v.  Biichamann,  5  0.  App.  270,  25  C.  C.  (N.S.)  529,  27 
C.  D.  303. 

(e)  If  the  payee  of  a  note  enters  into  a  contract  with  the 

maker  to  forbear  suit  for  a  given  time,  in  consideration  of 

the  payment  of  a  sum  of  money  or  the  execution  of  a  note 

for  such  sum  of  money,  it  is  a  valid  agreement;  and  it  may 

be  set  up  by  the  maker  when  an  action   is  brought  before 

expiration  of  the  extended  time. 

McComb  V.  Kittredge,   14  Oh.  348. 
Peck  V.   Beckwith,   10   0.   S.  497. 


549  THE    PAROL    EVIDENCE    RULE  §435 

435.  INCOMPLETE     W  R  I  T  I  N  G— C  O  N  T  R  A  C  T  S     IN 
GENERAL. 

(a)  The  parol  evidence  rule  does  not  apply  where  ex- 
press reference  is  made  to  a  parol  contract  in  the  writing,  or 
where  the  writing  does  not  purport  to  be  a  complete  expres- 
sion of  the  contract,  or  evidently  appears  to  express  only 
some  part  of  it,  and  that  which  is  sought  to  be  proved  does 
not  contradict  its  terms;  or  the  verbal  transaction  may  be  a 
different  one,  collateral  to  the  one  in  writing. 

]\ronnett  v.  Monneft,  4f)  0.  S.  30,  37. 
Piatt    V.  Sciibner.    ]8  C.  C.  4ryl,  !)  C.  D.  771. 
]\Iiller   V.   Florer,    15    0.   S.    148,    irv2. 
Howard  v.  Thomas,   12  0.   S.  201,  20G. 

(b)  Two  persons  brought  an  action  upon  a  verbal  con- 
tract, and  each  had  theretofore  signed  similar  written  con- 
tracts, both  of  which  were  really  collateral  to  and  were  not 
intended  to  cover  the  subject  of  the  verbal  contract,  and  it 
was  held  that  the  verbal  contract  could  be  proved  without 
violating  the  parol  evidence  rule. 

Bethel  v.  Woodworth,  11   0.  S.  393. 

(c)  Where  a  petition  in  an  action  for  breach  of  contract 
does  not  allege  a  complete  written  agreement  as  a  basis  of 
the  action,  but  an  ambiguous  memorandum  agreement  is  at- 
tached to  The  petition,  it  is  error  to  exclude  evidence  that 
the  parties  did  agree  upon  a  contract  which  was  fully  under- 
stood between  them. 

Kneipper  v.  Richards,  7  C.  C.   (X.S.)   581,  10  C.  T).  215. 

(d)  Where  a  railroad  company  issues  and  sells  a  coupon 
ticket  with  coupons  attached  good  over  a  connecting  line,  it 
is  competent  to  prove  by  parol  evidence,  aside  from  the  ticket 
sold,  the  contract  made  between  the  carrier  and  the  passenger, 

Pennsylvania   Co.   v.   Loftis,   72   0.   S.   288. 

(e)  Where  oil  lands  were  sold,  a  reservation  of  the  oil 
was  shown  by  parol  evidence  because  the  dealings  of  the  parties 
showed  that  they  did  not  look  upon  the  deed  as  containing 
the  whole  contract. 

Simmons  v.  Supply  Co.,  21   C.  C.  4ryr>,   11   CD.  090. 


§437  METZLER'S   OHIO    TRIAL    EVIDENCE  550 

(f)  An  advertisement  of  a  sale  of  personalty  may  be 
limited  by  an  oral  declaration  of  the  vendor  made  before 
sale,  and  the  proposal  may  thus  be  partly  oral  and  partly 
Avritten. 

Iladley  v.  Importing  Co.,   13  0.  S.  502,  505. 

436.  INCOMPLETE   WRITING— TRANSFERS. 

(a)  Parol  evidence  is  admissible  to  show  that  a  deed  is  a 
mortgage,  notwithstanding  the  deed  appears  absolute  on  its 
face.  Any  material  inadequacy  of  consideration,  the  prior 
pecuniary  relations  of  the  parties  and  other  circumstances 
tending  to  show  their  intention  and  the  true  character  of  the 
transaction  will  be  admitted. 

Exporting  Co.  v.  Banl<,  Wriglit,  240. 
Slutz  V.  Desenberg,  28   0.  S.  371.  378. 
See  Wilson   v.  Giddings,  28   0.   S.  554. 

(b)  A  written  assignment  of  a  chose  in  action,  uncon- 
ditional on  its  face,  in  part  execution  of  a  contract  not  in- 
tended by  the  parties  to  be  expressed  in  the  assignment,  is 
not  conclusive  evidence  that  the  transfer  was  absolute ;  but 
the  contract  under  which  it  was  executed  may  be  shown  by 
other  evidence, 

■Randall  v.  Turner,  17  0.  S.  262. 

See  Mollenkopf  v.  Baumgardner,  21  C.  C.  .501,  11  CD.  655. 

Baumgardner  v.  Mollenkopf,  65  O.  S.  612. 

(c)  An  absolute  assignment  of  a  fire  insurance  policy  may 
be  proved  by  parol  evidence  to  have  been  given  and  accepted 
as  collateral  security  for  a  debt. 

Insurance  Co.  v.  Wolf,  11  CD.  815,  21  C  C  202. 

437.  INCOMPLETE  WRITING— SURETYSHIP. 

(a)  The  contract  between  principal  and  surety  is  not 
necessarily  contained  in  or  evidenced  by  the  contract  with 
the  creditor,  but  may  be,  and  usually  is,  collateral ;  and  it 
may  be  proved  by  any  competent  evidence. 

JMcKee   v.  Hamilton,   33   0.   S.   7. 


551  THE    PAROL    EVIDENCE    RULE  §438 

(b)  lu  an  action  for  contribution,  and  in  the  absence  of 
any  contract  in  writing  fixing  such  relation  and  liability  be- 
tween accommodation  parties  to  a  note,  parol  evidence  is 
admissible  to  show  the  real  nature  of  the  transaction. 

Oldham   v.   Broom,   28   0.   S.   41. 

(c)  As  between  accommodation  makers  of  a  promissory 
note,  the  presumption  is  that  they  are  co-sureties,  and  as 
such  liable  to  each  other  to  contribute ;  but  this  presumption 
may  be  rebutted  by  parol  evidence  showing  that  the  one  last 
signing  did  so  as  the  surety  for  the  prior  makers,  and  not  as 
a  co-surety  Avith  the  prior  surety. 

Oldham    v.    Broom.    •2S    0.    R.    41. 

Cf.  Conett  V.  Squair,  17  O.  D.  65,  3  O.  L.  R.  558. 

(d)  Declarations  of  a  party  claiming  to  be  a  surety, 
made  to  the  principal  debtor  at  the  time  he  executes  and 
delivers  the  instrument,  as  to  the  terms  and  conditions  on 
which  he  becomes  liable,  are,  in  connection  with  other  testi- 
mony, admissible  as  part  of  the  res  gestae,  tending  to  show 
an  agreement,  express  or  implied,  as  to  the  extent  of  such 
liability. 

Oldham   v.   Broom,   28   0.   S.   41. 

(e)  A  draAver  of  a  bill  being  sued  by  the  payee  may  show 
a  parol  agreement  made  prior  to  the  bill  that  he  and  the 
paj^ee  were  joint  sureties  for  another  drawer,  and  that  he 
has  paid  his  half  and  thus  defeat  the  action. 

Kelley  v.  Few,   18  Oh.  441. 

438.  CUSTOM— GENERAL  RULE. 

(a)  Parol  evidence  of  a  usage  or  custom  is  admissible  to 
annex  incidents,  as  it  is  termed;  that  is,  to  show  what  things 
are  customarily  treated  as  incidental  to  tlie  ])riiu'ipal  thing 
to  which  the  instrument  relates.  This  evidence  is  admitted 
on  the  principle  that  the  parties  did  not  intend  to  express  in 
writing  the  whole  of  their  contract,  but  only  to  make  it  with 
reference  to  the  known  and  established  customs  relating  to 
tlie  subject-matter. 

Baker  v.   Jordan,  3  O.   R.  438,   441. 

Fester  v.  Pvohiii.s(ni,  G  O.  S.  90,  97. 


§    439  METZLER'S   OHIO   TRIAL   EVIDENCE  552 

(b)  Usage  or  custom  can  not  create  a  contract  or  liability 

where  none  otherwise  exists.     A  usage  or  custom  can  only  be 

used  to  explain  or  aid  in  the  interpretation  of  a  contract  or 

liability  existing  independently  of  it.    It  can  not  be  permitted 

to  contradict  or  vary  the  legal  import  thereof. 

Tliomas   v.  Trust   Co.,   81    0.   S.   432. 

Rubber  Co.  v.  Supply  Co.,  12  C.  C.  (N.S.)  24.3,  21  C.  D.  557. 

Tillyer  v.  Glass  Co.,  7  C.  D.  20i).  13  C.  C.  Hfl. 

>:icola  V.  Box  Co..  13  0.  D.  753,   1   N.  P.    (N.S.)    63. 

(c)  In  determining  whether  the  insured  has  given  notice 
of  loss  to  the  company  as  required  by  the  policy,  evidence  of 
a  local  custom  to  give  notice  to  the  local  agent  is  not  ad- 
missible because  it  would  contradict  the  policy. 

Insurance  Co.  v.  Silberman,  24  C.  C.    (N.S.)    511. 

(d)  And  where  a  policy  provides  that  the  assured  shall 
not  keep  gunpowder  or  petroleum  without  permission,  and 
in  an  action  on  the  policy  the  insurer  relies  on  a  breach  of 
the  condition,  evidence  is  not  admissible  to  show  a  custom 
among  dealers  to  keep  for  sale  such  articles  in  limited  quan- 
tities. 

Beer  v.  Insurance  Co.,  39  O.  S.  100. 

439.  CUSTOM  AND  THE  LAW. 

(a)  If  the  law  of  the  case  is  clear  'and  definite,  then 
custom  can  not  be  introduced  to  change  the  law  governing 
the  contract.  After  any  phrase  or  term  (such  as  f.  o.  b.) 
has  been  repeatedly  adjudicated  by  the  courts,  it  no  longer 
needs  explanation. 

Tillyer  v.  Gla.ss  Co.,   13   C.  C.  00,  7   C.  D.  200,  214. 

(b)  But  if  some  terms  of  an  instrument  are  technical  or 
foreign,  the  testimony  of  persons  acquainted  with  such  terms 
will  be  admitted.  But  no  custom  should  set  aside  the  well- 
defined  meaning  of  common  words. 

James  v.  Bostwick,  Wright.  142. 
Thompson   v.   Pruden.   0    C.   D.   8j7,    IS  C.  C.   8S6. 
O'Rourke  v.  Rapp,  14  N.  P.   (N.S.)    23,  24  0.  D.  528. 
McDonald  v.  Page,  Wright,    121. 


553  THE    PAROL    EVIDENCE    RULE  §439 

(c)  A  custom  is  not  admissible  eitlier  to  contradict  or 
alter  the  legal  import  of  a  contract,  or  to  change  the  title  to 
property  contrary  to  an  established  rule  of  law. 

Chase  v.  Washburn.  1   0.  S.  244.  iryl. 
Inglebriglit    v.    Haumioiui,    1!)    Oh.   337. 

(d)  When  the  words  of  a  contract  are  construed  in  law 
to  be  words  of  condition  or  description,  a  custom  which  con- 
strues  them   as   importing   a   warranty   will    not    be   recqived 
in  evidence. 
.       Rojiers   v.  Woodruff,  23   0.   S.   632. 


-"e"- 


(e)  A  custom  which  would  relieve  a  purchaser  from  the 
obligations  imposed  upon  him  by  the  doctrine  of  caveat 
emptor  is  contrary  to  law.  A  custom  of  the  trade  in  a  city 
in  regard  to  sales  by  brokers  or  commission  merchants  is  not 
admissible  if  contrary  to  law. 

Tliomas  v.  Trust  Co.,  81  0.  S.  432. 

];nt  V.  Evans,  1  C.  S.  C.  R.  50!).  13  <).  1).  ]{.  C'.W. 

Rolling  Mill  v.  Addy,  6  A.  L.  R.  764,  5  O.  D.  R.  588, 

(f)  Evidence  of  usage  of  other  banks  organized  under 
the  same  law  to  discount  at  greater  than  the  legal  interest 
is  not  admissible  to  make  a  transaction  valid.  No  usage  can 
abrogate  a  statute  or  change  laws  relating  to  negotiable 
paper. 

Bank  v.  Baker,  15  0.  S.  68. 

Dodge  V.   Bank,   30  O.   S.    1.   8. 

Bowden  v.  Bank,  12  Bull.  184,  9  0.  D.  R.  333. 

(g)  A  usage  which  is  not  according  to  law  can  not  be 
set  up  to  control  the  law,  even  if  it  were  universal ;  such  as 
a  usage  giving  to  a  miner  a  right  to  throw  refuse  where  it 
would  wash  down  stream  on  another's  land. 

Coal  &  Iron   Co.  v.  Tucker,  49,  0.  S.  41,  60. 

(h)  The  meaning  of  a  measure  as  fixed  by  law  can  not  be 
varied  by  parol ;  thus  evidence  to  explain  the  value  of  a 
dollar  is  incompetent.  And  when  blocks  furnished  under  a 
contract  are  to  be  paid  for  by  the  square  yard  it  can  not  be 
shown  to  mean  as  laid  in  the  street  with  strips  between  the 
courses,   even   though   the    contractor   had   beoTi    informed   by 


§440  METZLER'S   OHIO    TRIAL    EVIDENCE  554 

an   officer  of  the  city  that  this  had  been   and  -would  be   the 
practice. 

Worth    V.    Wilson,    Wriplit.    102. 

Maloiic  V.  Cincinnati,  3  Bull.  57S,  7  O.  D.  R.  513. 

(i)  But  a  purchase  of  a  pile  of  loose  rock  at  so  much 
per  cubic  yard  may  be  shown  by  usage  to  mean  a  cubic  yard 
as  regularly  laid  in  a  wall,  and  that  the  number  of  cubic 
feet  in  the  pile  should  be  divided,  not  by  twenty-seven,  but 
by  thirty-three,  to  ascertain  the  cubic  yards  to  be  paid  for. 

Costello  V.  Henkol,  30  Bull.  05. 

Cf.  Quarry  Co.  v.  Clements,  38  O.  S.  587. 

(j)  And  a  written  contract  to  lay  brick  at  so  much  per 
thousand  may  be  interpreted  by  a  local  custom  to  estimate 
the  number  by  measurement  in  the  walls  on  a  uniform  rule 
based  on  the  average  size  of  brick,  with  additions  for  extra 
Mork  and  wastage. 

Lowe  V.  Lelmian,   15  0.  S.   179. 

(k)  A  custom  must  not  be  unjust,  oppressive  or  in  con- 
flict with  an  established  rule  of  public  policy.  A  court  will 
not  consider  a  usage  Avhicli  is  unreasonable  in  its  operation 
and  is  contrary  to  public  policy. 

Thomas  v.  Trust  Co.,  SI  0.  S.  432,  445. 
Price  V.  R:n1n);ul,  ]:l  X.  P.  (N.S.)  Go. 
Nolte  V.  Hill,  36  0.  S.  186. 

440.  NOTORIETY  OF  CUSTOM. 

(a)  It  is  the  general  rule  that  a  custom  to  affect  the 
rights  of  a  ])ers()n  must  be  shoAvn  to  be  long  continued  with- 
out interruption,  acquiesced  in,  reasonable  and  certain,  so 
that  the  presumption  arises  that  it  was  known  to  the  parties. 
But  custom  as  applied  to  contracts  is  not  an  exception  to 
h'^arsay  nor  of  an  ancient  character. 

Thomas  v.  Trust  Co.,  81   0.  S.  432,  445. 
Oil  Co.   V.  McCrory,    14  C.  C.   304,  7   C.  D.   34^. 
Wald  V.  Bien,  14  N,  P.   (N.S.)    145,  and  cases  cited. 
Tillyer   v.   Glass   Co.,   7  C.  D.  209.    13  C.  C.   99. 

(b)  In  an  action  upon  a  policy  of  insurance,  evidence  of 
a  local  custom  among  insurers  not  communicated  to   the   in- 


DOO 


THE    PAROL    EVIDENCE    RULE  §441 


siircd    nor    of    such    notoriety    as    to    afford    presumption    of 
knowledge  on  his  part  is  not  admissible. 
Insurance  Co.  v.  Harmer,  2  0.  S.  452. 

(c)  And  a  practice  which  is  unknown  to  those  generally 
engaged  in  the  trade  can  not  be  sustained  as  a  usage.  It  can 
not  control  the  terms  of  a  contract  because  those  making  the 
contract  can  not  be  presumed  to  contract  in  reference  to  a 
thing  of  which  they  -were  ignorant. 

The  Albatross  v.  Wayne,  16  Oh.  513,  517. 

(d)  A  purchaser  of  goods  residing  at  Cincinnati  is  not 
entitled  to  the  benefit  of  a  custom  there  Avhich  requires  the 
seller  to  pay  the  freight,  unless  it  is  shown  that  the  seller 
had  knowledge  of  the  custom. 

Mill  Co.  V.  Hazen,   11   CD.  rA,  20  C.  C.  2S7. 

(e)  In  an  action  for  work  and  labor,  if  defendant  relies 
on  a  usage  of  his  establishment  to  pay  in  something  else  than 
money,  he  must  prove  plaintiff's  knowledge  of  such  usage  at 
the  time  of  commencing  the  work. 

Lewis  V.  Gaylord,  1   W.  L.  J.   487,   1   0.  IX-  K.  7.1. 

• 

(f)  But  a  custom  may  be  so  general  and  universal  and 
so  commonly  known  and  acted  upon  as  to  shut  out  the  right 
to  plead  ignorance  of  its  existence,  though  only  of  recent 
date. 

Oil   Co.    V.  ]\IcCroiy,    14   C.   C.   304.   7    C.   T).   344.' 
Fatman    v.   Tliomi)son.    2    D:>.    4S2.    13   O.    D.   R.   2!>.-). 

(g)  If  the  jurj'  find  a  local  usage  to  have  been  certain, 
uniform,  and  generally  aeciuiesced  in  at  the  place  where  the 
parties  to  the  contract  resided  and  contracted,  they  may  in- 
terpret the  contract  by  it,  although  the  usage  was  only  of 
seven  years'  standing,  and  was  not  actually  known  to  the 
plaintiff. 

Lowe  V.  Lehman,  1.")  0.   S.   170. 

441.  USAGES  OF  TRADE. 

(a)     AVhenever  a  usage  of  any  particular  trade  or  place 
is  proven  to  exist,  the  law  implies  on  the  part  of  those  who 


^441  METZLER'S   OHIO   TRIAL    EVIDENCE  556 

contract  upon  a  matter  to  Avliicli  such  custom  or  usage  has 
reference,  a  promise  in  conformity  with  such  usage,  provided 
there  is  no  express  stipulation  to  the  contrary. 

Fatman   v.  Thompson,   2  Dis.  482,   13   0.  T).  R.   2f).-). 

Pullan    V.    Cochran,   6    Bull.    390,    6   O.   D.   R.    1070. 

(b)  Where  some  terms  of  a  bill  of  lading  have,  by  the 
course  of  trade  and  usage,  acquired  a  particular  signification, 
the  persons  engaged  in  such  trade  will  be  presumed  to  have 
used  the  terms  in  that  sense. 

Wayne   v.   The    General   Pike,   16   Oh.    421. 

(c)  In  an  action  on  an  insurance  policy,  evidence  is  ad- 
missible to  show  the  custom  of  trades.  Underwriters  are 
bound  to  know  the  usages  of  the  particular  trade  as  to 
which  they  contract. 

Insurance   Co.  v.  Shillito,   1.5   0.   S.   o-lO,  572. 

(d)  A  general  usage  of  the  place  that  a  tenant  of  a  farm 
for  a  year  shall  gather  the  away-going  crop  will  annex  such 
right  as  an  incident  to  the  lease  if  the  lease  contains  noth- 
ing to  negative  it. 

Foster  v.  Robinson,  6  0.  S.  90. 

(e)  A  usage  in  the  sales  of  a  certain  kind  of  tobacco 
in  a  city  that  it  is  M^arranted  to  remain  sound  for  four 
months,  or  be  subject  to  rebate  of  price,  is  valid  and  becomes 
part  of  the  contract. 

Fatman  v.   Thompson,   2   Dis.   482,   13   0.  D.   R.  29.'). 

(f)  A  contract  to  deliver  ore  on  the  landing  at  C  may 
be  shown  by  a  settled  and  well-known  usage  to  mean  that 
the  quantity  is  taken  from  the  pile  there  and  put  on  the 
buyer's  boats,  and  that  no  other  kind  of  delivery  is  per- 
mitted or  practicable. 

Steel   Works   v.   Dewey,   37   0.    S.   242. 

(g)  "Where  a  contract  for  the  sale  of  coal  in  place  pro- 
vides that  royalty  shall  be  paid  upon  all  "merchantable 
coal"  mined,  parol  evidence  is  admissible  to  show  that  in  the 
locality  where  the  coal  was  mined  the  phrase  meant  "lump 
coak" 

Coal  Co.  V.  Hughes,  9  C.  C.    (KS.)    121,  19  C.  D.  139. 


557  THE    PAROL    EVIDENCE    RULE  §443 

(h)  Parol  evidence  of  a  custom  among  contractors  for 
dredging  ship  channels  as  to  the  burden  of  expense  assumed 
by  sub-contractors,  is  admissible  to  explain  the  surrounding 
facts  and  circumstances. 

Dock  Co.  V.  Smith,  25  C.  C.   (X.S.)    142. 

(i)  Evidence  of  a  particular  custom  is  sometimes  ad- 
mitted to  show  that  the  mode  in  which  a  contract  has  been 
performed  is  the  one  customarily  followed  by  others  engaged 
in  the  same  trade. 

Coal   &   Iron   Co.   v.   Tucker,   48   0.   S.  41,  CO. 

442.  CUSTOM— EXPERT  WITNESSES. 

(a)  Only  witnesses  who  are  experienced  in  the  trade  can 
testify  to  the  custom  existing  in  that  trade ;  and  their  testi- 
mony is  not  to  be  given  as  a  matter  of  opinion,  but  as  a 
matter  of  fact ;  and  by  a  matter  of  fact  is  not  meant  that 
individual  instances  can  be  testified  to. 

Tillyer  v.  Glass  Co.,  13  C.  C.  99,  7  C.  D.  209. 
See  Nolte  v.  Hill,  2   Bull.   S6.   7   O.  D.   R.   297. 
Austin  V.  Williams,  2  Oh.  61. 

(b)  A  witness  may  be  asked  if  he  knows  of  any  custom 

of  trade  in  delivering  goods  at  one  place  which  is  different 

from  the  usage  of  other  places. 

The   Albatross   v.    Wayne,    10   Oh.   513. 

443.  CUSTOM— PRACTICE. 

(a)  A  special  custom  or  usage  in  any  particular  trade- 
business  or  profession  in  order  to  be  available  as  a  ground  of 
action  or  defense  must  be  specially  pleaded,  and  must  be 
proved  by  a  preponderance  of  the  evidence.  When  the  usage 
relates  to  the  meaning  of  a  word,  it  need  not  be  pleaded. 

Palmer  v.  Humiston,  87  0.  S.  401. 
Pullan    V.   Cochran,   fl    Bull.    3!10,    il    O.    I).    K.    1070. 
Oil  Co.  V.  McCrory,   14  C.  C.  304,  7   C.  P.  341. 
Lowe   V.   Lehman,    15   0.   S.    179. 

(b)  But  a  usage  that  might  become  very  injurious  in 
practice  should  not  be  allowed  to  be  established  without  clear 
and  satisfactory  proof  of  its  actual  existence  and  general 
acquiescence  by  the  public. 

Wayne    v.  The   General   Pike,    16   0.   S.   421. 


§444  METZLER'S    OHIO    TRIAL    EVIDENCE  558 

444.  AMBIGUiTY. 

(a)  In  the  case   of  a  patent  ambiguity,   that  is,   one   ap- 

]iearing  on  the  face  of  the  instrument,  a  reference  to  matters 

dehors    the    instrument    is    forbidden    as    a    general    rule.      It 

must,  if  possible,  be  removed  by  construction. 

Hxird   V.  Robinson,    11   0.   R.   232.   23o. 
Clark   V.   Seminary.   2  C.  D.   87,   3   C.   V.    l.")2. 
Boone    v.    Cincinnati,    13    O.    D.    2.")(!. 

(b)  But  when  an  ambiguity  arises  from  extrinsic  matters, 
or  when  the  object  or  extent  of  the  instrument  can  not  be 
determined  from  the  language  used,  parol  evidence  is  admis- 
sible to  remove  that  ambiguity  and  ascertain  the  object  upon 
which  it  was  designed  to  operate. 

Insurance   Co.   v.   Boyle,  21   0.    S.    119,    12S. 
Hurd   V.   Robinson,    11   O.  S.  232,  2.3o. 
Painter    v.    Painter,    IS    Oh.    247,    20.5. 

(c)  An  ambiguity  arises  where  words  apply  equally  to 
different  things,  and  one  and  not  the  other  must  have  been 
intended.  It  is  not  an  ambiguity  where  by  the  language 
either  was  intended. 

Webster  v.  Paul.   10  0.  S.  .531.  .534. 

(d)  A  deed  of  lot  fourteen  on  the  "village  plat"  may  be 
shown  by  parol  not  to  mean  the  recorded  plat  of  the  village, 
but  a  new  and  unrecorded  plat  of  additional  lands  subdivided 
by  the  proprietors. 

Fitzgerald    v.   Paihvay.    1    Bull.    226.    7    0.   D.    "R.    173. 

(e)  Upon  a  like  principle  stands  the  case  of  a  contract 

to  do  a  thing  when  there  are  two  usual  w^ays  to  do  it.     The 

party  upon  whom   performance   devolves   may   adopt   either. 

If  a  contract  to  ship  hogs  is  silent  as  to  route,  the  shipper 

may  select  the  route;  and  parol   evidence  is  not   admissible 

to  show^  that  one  of  the  routes  was  agreed  on. 

Webster   v.  Paul,  10  0.  S.  .531,  535. 

Cf.    Lawrence    v.    McGregor,    Wright,    103. 

(f)  Parol  evidence  of  declarations  and  conduct  may  be 
received  when  there  is  a  latent  ambiguity  in  a  deed  as  to 
lines  and  corners,  or  where,  in  the  application  of  the  descrip- 


559  THE    PAROL    EVIDENCE    RULE  §445 

tioP  in  the  deed  to  the  land,  the  monuments  require  identifi- 
cation. But  evidence  of  intention  can  not  control  a  call  or 
contradict  the  deed. 

:NrcAfferty  v.  Conover.  7  0.  S.  90. 
See  Alshire  v.  Hulse,  Wright,  170. 
Harris   v.   Coppock,  5  0.  L.   R.   207,    IS   O.   D.   -iCiC. 

(g)  A  village  claimed  that  the  starting  point  of  a  survey 
^vas  on  an  old  line  and  cut  down  plaintiff's  hedge  and  in- 
cluded in  the  road  a  part  of  his  land  and  he  sued  for  dam- 
ages. It  Avas  held  that  parol  evidence  was  competent  to  show 
which  of  two  lines  was  treated  as  the  line  by  the  resurvey 
of  the  road. 

Caldwell  v.   Carthage.  40  0.   S.   453. 

(h)  When  a  printed  order-form  provides  that  orders  will 
be  filled  at  the  earliest  possible  date,  writing  on  the  order 
"Ship  at  once — Rush"  indicates  a  special  agreement  as  to 
shipment  and  creates  ambiguity;  and  what  was  said  when 
the  ambiguous  words  were  written  may  be  shown. 

Aronson  v.   Chair   Co.,  21    C.   C.    (X.S.)    30. 

(i)  Parol  evidence  is  admissible  to  explain  away  a  latent 
ambiguity  m  a  note  given  payable  in  goods,  "at  a  fair  whole- 
sale factory  price,"  as  to  whether  the  parties  intended  the 
value  of  such  goods  to  be  estimated  under  the  cash  or  trade 
standard  as  fixed  by  a  particular  factory. 

Barrett   v.   Allen,   10  Oh.  426.  431. 

(j)  In  a  written  contract  to  install  a  complete  automatic 
sprinkler  system  to  be  completed  in  accordance  with  the  re- 
quirements of  the  Ohio  Inspection  Bureau,  the  word  "com- 
plete" is  ambiguous,  and  parol  evidence  is  admissible. 

Hoover  Co.  v.  Extinguisher  Co.,   19   C.   C.    (X.S.)    129. 

445.  SURROUNDING  CIRCUMSTANCES— CONTRACTS. 

(a)  "Where  the  language  of  a  contract  is  of  doubtful  im- 
port, it  is  proper  to  ascertain  the  circumstances  which  sur- 
rounded  the   parties,   and   the   object   intended   to   be   accom- 


§445  METZUER'S    OHIO    TRIAL    EVIDENCE  560 

plislied,  in  order  to  give  proper  construction  to  its  words  and 

to  determine  its  legal  effect. 

Hosier  v.   Parry,   60  0.    S.    388. 

Monnett    v.  *^Ionnett,    4G    0.    S.    30. 

Masters   v.   Freeman,    17    0.    S.  323. 

Cf.  Bank   v.  Chandelier  Co.,   9   C.   D.   807,   17  C.  C.  443. 

(b)  But  the  oral  declarations  of  a  party  to  a  written 
instrument,  made  before  or  at  the  time  of  its  execution,  of  an 
intention  or  purpose  not  therein  expressed,  or  [and]  different 
from  that  to  be  derived  from  its  terms,  are  not  within  the 
rule  which  permits  extrinsic  evidence  of  the  situation  of  the 
parties  or  of  the  surrounding  circumstances  when  the  instru- 
ment was  executed,  and  are  inadmissible  in  an  action  on  the 
instrument  where  its  reformation  is  not  sought. 

Tuttle   V.   Burs-ett.   ."3   O.   S.   4 OS. 

Cf.  Bank  v.  Chandelier  Co.,  17  C.  C.  443,  9  C.  D.  807. 

Sinton  v.  EzekicI,  S   A.  L.  R.  424,  tl  ().    1).   K.   S4"). 

(c)  Where  a  written  contract  is  doubtful  in  meaning,  the 
facts  of  the  transaction  may  be  admitted  to  show  that  words 
prima  facie  relating  to  a  past  transaction  in  fact  relate  to 
the  future.  But  v>'hen  a  contract  plainly  relates  to  the  future, 
parol  evidence  to  show  a  different  understanding  is  not  ad- 
missible. 

Lamping  v.  Cole,  5  W.  L.  '^L  187,  2  0.  D.  E.  737. 
Denton    v.    Wliitney.   31    O.  S.   SO. 

(d)  Where  a  contract  of  sale  is  made  by  correspondence, 
the  court  may  look  not  only  to  the  language,  but  also  to  the 
subject-matter  and  surrounding  circumstances,  to  determine 
whether  there  was  a  warranty  as  to  quality. 

Dayton   v.  Hooglund,   39   0.   S.   671. 

(e)  In  an  action  on  a  written  contract  for  stone  at  four  dol- 
lars and  fifty  cents  "per  perch,"  no  uniform  usage  of  the 
number  of  feet  in  a  perch  being  shown  and  no  statutory  pro- 
vision fixing  the  standard,  the  verbal  negotiations  of  the  par- 
ties for  the  stone  at  eighteen  cents  per  cubic  foot,  which  the 
attorney  of  his  own  motion  converted  into  perch  of  twenty-five 
feet  each,  are  admissible. 

Quarry   Co.   v.   Clements,   38   0.   S.   587. 


561  THE    PAROL    EVIDENCE    RULE  §448 

446.  SURROUNDING   CIRCUMSTANCES— GUARANTIES. 

(a)  In  construing  a  guaranty,  the  language  used  is  to 
be  understood  in  its  plain  and  ordinary  sense  as  read  in  the 
light  of  the  surrounding  circumstances,  the  situation  of  the 
parties,  and  the  object  of  the  guaranty;  and  that  construc- 
tion should  be  given  which  most  nearly  conforms  to  the 
intention  of  the  parties. 

Morgan   v.   Eoyer,   3n   0.   S.   324. 

Iron   Co.    V.   Keynes,   oft   O.    S.   501. 

Bank    V.    Garn/s    C.   C.    (X.S.)    428,    13   C.   D.   447. 

Bank   v.  Laidlaw,  SO  0.   S.  91. 

(b)  An  unlimited  guaranty  in  the  absence  of  words  show- 
ing that  it  Avas  intended  to  be  continuing  is  equivocal;  and 
the  surrounding  circumstances  may  be  proved  to  enable  the 
court  to  understand  the  terms  employed  and  arrive  at  the 
mutual  intention. 

Bank   v.   Cole.   83   0.   S.   50,   U  C.   C.    (N.S.)    315. 
Landman   v.    Sauerston,  24    C.   C.    (N.S.)    478. 

447.  SURROUNDING  CIRCUMSTANCES— WILLS. 

(a)  In  construing  a  will,  it  should  be  read  with  a  view 
to  the  situation  and  circumstances  of  the  testator  in  refer- 
ence to  the  subjects  of  his  dispositions  and  the  objects  of  his 
bounty.  But  such,  circumstances  can  affect  its  construction 
only  when  it  appears  that  they  were  known  to  the  testator 
at  the  time  of  its  execution. 

Worman   v.   Teagarden,  2   0.  S.   380, 

Charch    v.   Cliarch,   57    0.   S.   nfil. 

Thompson    v.    Tliompson,    4    O.    S.    333. 

Jones   V.   Lloyd,   33  0.   S.  572. 

448.  SURROUNDING  CIRCUMSTANCES— DEEDS. 

(a)  The  real  meaning  intended  to  be  expressed  by  the 
language  of  a  deed  must  be  sought  for;  and  in  case  of  doubt, 
it  may  be  read  in  the  light  of  the  circumstances  surrounding 
the  parties  at  the  time  of  execution. 

Bobo    V.   Wolf,    18    0.    S.    403.    405. 

Stove   Co.    V.   Railroad,   23   C.   C.    (N.S.)    260. 

Kratz   V.  Risch,   13   N.   P.    (N.S.)   478. 


§  449  METZLER'S    OHIO   TRIAL    EVIDENCE  562 

(b)  A  grant  passes  everything  within  the  ordinary  mean- 
ing of  its  words,  unless  the  entire  instrument  read  in  the  light 
of  the  relation  of  the  parties  to  the  subject-matter  clearly 
shows  a  more  limited  sense.  And  the  circumstances  may  be 
considered  in  determining  the  nature  of  an  easement  reserved 
by  deed. 

Coal   Co.   V.   Mining  Co.,  40  0.   S.  559. 

Longworth    v.    Bank,    6    Oh.   537. 

Lyon   V.  Fels,  8  N.  P.  450,   11  0.  D.  706. 

449.  CONSTRUCTION  BY  PARTIES. 

(a)  Where  the  language  of  a  contract  is  of  doubtful  im- 
port, it  is  proper  to  ascertain  the  construction  which  the  acts 
of  the  parties  show  they  gave  to  their  agreement,  in  order  to 
give  proper  construction  to  its  words  and  to  determine  its 
legal  effect. 

IMosier   v.   Parry,    fiO   0.    S.  388. 

(b)  In  such  cases,  the  conduct  of  the  parties  and  their 

course  of  dealing  throw   great  light  on  the  contract  and  on 

the  intention  of  the  parties ;  and  evidence  of  such  facts,  may 

be  considered. 

Proctor    V.    Pnodgrass.    3   C.   D.   2m,   5   C.   C.   547. 

Malone    v.    CinL-innati,    3    Bull.    578,    7    O.    D.    R.    513,    515. 

(c)  Subsequent  transactions  under  or  in  pursuance  of  the 
contract,  or  with  the  contract  in  view,  may  be  looked  to  for 
the  pur])ose  of  discerning  the  interpretation  the  parties  have 
put  upon  its  doubtful  provisions. 

Bank   v.  Garn.  3  C.  C.    (N.S.)    428.  13   C.  D.   447. 

(d)  Where   the   terms   of   a   grant    of   a   right-of-way   are 

general  and   indefinite,   its   location   and  use   by  the   grantee, 

acquiesced  in  by  the  grantor,  will  have  the  same  legal  effect 

as  if  it  had  been  fully  described  in  the  grant, 

Warner    v.    Railroad,    39    0.    S.    70. 

Railway   v.   Williams,   53   O.   vS.  268. 

Railroad   v.   Cincinnati,    16   Bull.    367,    9    0.    D.   R.   695. 

(e)  Where  a  deed  is  not  clear  as  to  the  length  of  a  pas- 
sageway,   the   construction   placed   upon   the    deed    for   many 


563  THE    PAROL    EVIDENCE    RULE  §450 

years  by   the   adjoining   owners   wlio    derived   title   from    the 
same  source  will  be  adopted. 

Creed    v.   ITenkel,  0   C.  D.   SGI,   IS   C.  C.   SS3. 

450.  IDENTIFICATION  OF  PARTIES. 

(a)  Parol  evidence  is  sometimes  admitted  to  identify  the 
parties  to  a  written  instrument.  Thus  where  a  receiver  of  a 
railroad  accepted  a  bid  to  furnish  coal,  and  ordered  the 
superintendent  of  the  road  to  sign  a  contract  for  it,  evidence 
was  admitted  to  show  an  intention  to  contract  with  the 
receiver. 

Mining   Co.   v.  Railroad,   10   Bull.  42,  9   0.  D.   R.   1.".. 

(b)  The  introduction  of  parol  evidence  to  prove  the  de- 
livery and  acceptance  of  a  written  offer  to  contract,  and  to 
identify  the  person  to  whom  the  offer  was  made  and  thus 
establish  the  mutuality  of  engagements  between  the  parties, 
is  proper. 

Railroad   v.   Brown,   21)  ().  S.  223.   2.'!;]. 

(c)  If  a  dispute  arises  as  to  the  identity  of  any  person 

named  in  a  will,  extrinsic  facts  may  be  resorted  to  in  so  far 

as  they  can  be  made  ancillary  to  the  right  interpretation  of 

the  testator's  words,  but  for  no  other  purpose. 

Townsend    v.   Townsend,   2.1   0.    S.   477. 

See   Taylor    v.    Taylor,    7    X.   P.    (N.S.i    297.    19   O.   1).   829. 

(d)  Where  a  bequest  is  given  to  a  charitable  institution 
and  its  name  .is  not  correct,  extrinsic  evidence  will  be  received 
to  identify  the  corporation. 

TklcCormick   v.   Dunker,   3   C.   C.    (N.S.)    (iOS,    14  C.  D.  553. 

(e)  Where  there  is  a  conveyance  of  land  to  a  person  by 
name  and  there  are  two  persons  of  the  same  name,  extrinsic 
evidence  is  admissible  to  show  which  was  intended. 

Avery    v.    Rtitos,    Wright,    56. 

(f)  Where  a  board  of  county  commissioners  consented  in 
wi'iting  to  the  construction  of  a  street  railway  in  a  street  in 
front  of  county  property,  parol  evidence  was  admitted  to 
show  that  their  signatures  were  made  while  sitting  as  a  board. 

Xearing    v.    Railway.    C    C.   T).    004,   9   C.   C.    .-)9r,. 


§451  METZLER'S    OHIO   TRIAL    EVIDENCE  564 

451.  RELATION  OF  PARTIES. 

(a)  Evidence  may  be  introduced  tending  to  show  the 
relations  of  the  parties  just  prior  to  and  at  the  time  of  enter- 
ing into  a  contract,  and  also  the  conversations  of  the  parties, 
for  the  purpose  of  enabling  the  court  to  ascertain  the  intentions 
of  the  parties  in  executing  the  contract.  Therefore,  where  a 
note  is  signed  by  the  persons  individually,  it  may  be  shown  by 
parol  to  be  a  partnership  liability. 

Buschmeyer  v.  ]\Iachinery  Co.,  7  0.  App.  202,  27  O.  C.  A.  337,  29  C.  D. 
207. 

Clapp   V.   Banking   Co.,'  50  0.   S.  528,   540, 

Magruder   v.   McCandlis,  5   W.  L.   G.   ISS,   3  0.   D.   R.   269. 

(b)  In  order  to  show  the  relation  of  parties,  an  indorser 
may  show  that  his  indorsement  was  not  made  in  the  course 
of  trade  to  transfer  title.  The  declarations  of  the  parties  at 
the  time  may  be  admitted  to  show  that  it  was  agreed  that 
his  indorsement  should  be  erased. 

Hudson   V.  Walcott,  39  0.   S.  618. 

(c)  An  indorsement  in  blank  may  be  shown  by  parol  to 
have  been  made  not  to  transfer  title,  but  as  a  receipt  of  pay- 
ment ;  as  where  after  maturity  a  stranger  to  a  note,  at  the 
maker's  request,  pays  it  to  the  holders,  who  then  indorse  it 
as  proof  of  payment.  This  is  showing  that  there  is  no  con- 
tractual relation,  and  the  proof  must  be  clear  and  convincing. 

Morris   v.   Faurot,   21    0.   S.    155. 
Olinger    v.    McGuffey,    55    0.    S.    661. 

(d)  Where  a  written  contract  is  made  by  plaintiff's  agent, 
the  plaintiff  may  establish  the  agency  by  parol  evidence,  even 
if  the  agent  has  contracted  in  his  own  name  without  disclos- 
ing his  agency  or  the  name  of  his  principal. 

Thayer   v.  Luce,   22  0.    S.   62. 

(e)  But  parol  evidence  is  not  admissible  to  change  the 
legal  effect  of  a  written  contract  with  an  agent  in  which  he 
appears  as  principal,  so  as  to  make  it  binding  on  the  prin- 
cipal, even  where  the  principal  is  known  to  the  other  party. 
The  party  is  bound  to  look  to  the  agent. 

Post    V.    Kinney,    3    Bull.    118,   7   0.   D.   R.   439. 

Cf.  Wilson  V.  Bailey,  1  Handy,  177,  12  0.  D.  R.  88. 


565  THE    PAROL    EVIDENCE    RULE  §453 

(f)  In  an  action  on  an  alleged  stated  account,  the  defend- 
ant may  prove  that  there  was  one  item  withdrawn  for  future 
settlement  by  agreement,  and  also  that  the  account  was 
acquiesced  in  by  one  who  had  no  authority  to  do  so. 

Richmond   v.   Oil    Co.,   S   X.   P.  22,  8  0.   D.   583. 

(g)  "When  a  loan  was  made  by  an  insurance  company  on 
condition  that  the  borroAver  take  out  life  insurance,  parol  evi- 
dence that  the  profits  on  the  policy  have  amounted  to  enough 
to  pay  off  the  loan  does  not  vary  the  writings  but  shows 
payment. 

Insurance  Co.  v.  Morrow,  8   C.  D.  410.  Ifi   C.  C.   3ol. 

(h)  On  the  trial  of  an  issue  under  the  statute  of  frauds, 
the  assent  of  the  plaintiff  to  the  terms  of  the  contract  may 
be  shown  by  parol  evidence,  when  the  signature  of  the  de- 
fendant only  is  required. 

Thayer  v.  Luce,  22  0.  S.  62,  76. 

452.  SUBJECT-MATTER— GENERAL  RULE. 

(a)  Extrinsic  parol  evidence  is  admissible  to  give  effect 
to  a  written  instrument  by  applying  it  to  its  proper  subject- 
matter  by  proving  the  circumstances  under  which  it  was 
made,  whenever  without  the  aid  of  such  evidence  the  applica- 
tion of  the  contract  to  its  proper  subject-matter  could  not 
be  made. 

Hildebrand    v.    Fogle,    20    Oh.    147,    loS. 

Buggy   Co.  V.  Parker,   17   C.   D.   115,   5   C.  C.    (N.S.)    383,  38.-). 

(b)  To  enable  the  court  to  ascertain  the  subject-matter 
where  there  is  doubt,  parol  evidence  of  circumstances  and 
of  conversations  preceding  the  making  of  the  contract,  which 
neither  alter  nor  add  to  it,  are  admissible.    • 

Motor  Vehicle   Co.  v.  Price,  23  C.  C.    (N.  S.)    403. 

453.  SUBJECT-MATTER— CONTRACTS  IN   GENERAL. 

(a)  In  construing  a  written  contract  to  superintend  the 
erection  of  buildings,  ])rior  conversations  and  a  plat  which 
had  been  used  by  the  parties  may  be  admitted  to  identify 
the  buildings  and  improvements. 

Proctor   V.   Snodgrasa,  o   C.   C.   547,   3   C.   D.  268. 


§454  METZLER'S   OHIO   TRIAL    EVIDENCE  566 

(b)  In  an  action  to  recover  damages  for  alleged  failure 
of  the  vendor  to  deliver  hogs  according  to  the  terms  of  a 
Avritten  contract  in  which  the  snbject  of  the  sale  is  desig- 
nated as  "ray  hogs,"  the  plaintiff  may  introduce  parol  evi- 
dence to  show  that  the  defendant  did  not  deliver  all  of 
his  hogs. 

Watson   V.  Lamb,  75   0.   S.   481. 

(c)  But  a  written  contract  of  sale  of  one  hundrad  mer- 
chantable fat  hogs  in  which  the  weight  is  stipulated,  is  not 
a  sale  of  specific  chattels;  and  parol  evidence  will  not  be 
admitted  to  show  that  the  hogs  then  owned  by  the  seller 
formed  a  part  of  the  one  hundred. 

Johnson   v.  Pierce,  16  0.  S.  472. 

Cf.    Peabody    v.    Kelly    Co.,    Iddings,    ITi!). 

(d)  And  in  an  action  on  a  written  contract  of  sale  of  eight 
thousand  bushels  of  corn,  it  was  held  that  the  contract  can  not 
be  construed  as  a  sale  of  a  specific  lot  of  corn  of  about  that 
amount ;  and  that  parol  evidence  is  not  admissible  to  show  that 
the  plaintiffs  then  owned  a  greater  quantity  of  corn  than  eight 
thousand  bushels  in  cribs  on  a  certain  farm,  and  that  the  con- 
tract was  for  the  sale  of  an  undivided  part  of  the  entire  lot. 

Ormsbee    v.    Machir,   20   0.    S.  295. 

454.  SUBJECT-MATTER— WILLS. 

(a)  In  construing  a  Avill,  parol  evidence  of  extrinsic  cir- 
cumstances is  admissible  for  the  purpose  of  applying  the 
descriptions  to  their  appropriate  subject.  The  descriptions 
may  be  apparently  plain,  and  yet  the  whole  Avill  may,  in  view 
of  the  circumstances,  show  them  to  be  false  in  part.  The 
false  part  will  then  be  rejected  and  effect  be  given  to  the 
devise. 

Asliworth    V.   Carleton,    12  0.    S.    381. 

Townsend   v.   Townsend.    25   0.   S.   477. 

Cf.  Hull   V.   Hull,   9   C.   D.   19,   16  C.   C.   G8S. 

(b)  The  testator  having  used  the  phrase  "my  two  farms," 
extrinsic  evidence  may  be  introduced  to  show  the  situation 
of  the  land  and  the  manner  in  which  it  had  been  used  and 


567  THE    PAROL    EVIDENCE    RULE  §455 

treated,  in  order  to  ascertain  whether  a  disconnected  piece  of 
Avoodland  Avas  in  fact  a  part  of  one  of  the  "two  farms"  so 
as  to  pass  under  the  devise. 
Black   V.   Hill,   32   0.   S.   313. 

(c)  Words  in  a  devise  applicable  to  one  thing  as  its  name, 
and  to  another  as  its  description,  may  be  aided  by  parol  evi- 
dence of  testator's  habit  of  using  the  words.  And  in  order 
to  determine  how  much  was  included  in  the  "home  farm," 
its  situation  and  use  may  be  shown,  but  not  neighborhood 
reputation. 

Bopgs  V.  Taylor.  20  0.   S.  604. 
Taylor   v.   Boggs,   20  0.   S.   516. 

(d)  A  devise  of  testator's  interest  in  his  aunt's  estate, 
-Vshere  her  estate  was  for  life,  may  be  shown  by  parol  to 
mean  the  remainder  after  his  aunt's  life-estate  had  ended. 

Williams   v.   Swift.   6  Bull.   722,   S  0.  T).  "R.   2.)8. 

(e)  But  parol  evidence  can  not  be  admitted  where  the 
language  is  applicable  to  any  subject.  Where  the  executor 
is  directed  to  collect  all  life  insurance  held  by  testator,  this 
does  not  include  beneficial  certificates  payable  to  testator's 
wife,  if  there  is  other  insurance. 

Charch    v.   Charcli,   57    0.   S.  5G1. 

455.  SUBJECT-MATTER— INSURANCE   POLICIES. 

(a)  ^Miere  an  insurance  policy  is  doubtful  in  meaning, 
parol  evidence  is  admissible  to  show  the  nature  and  qualities 
of  the  subject-matter,  the  situation  and  relation  of  the  parties, 
and  all  the  circumstances  in  order  to  aid  the  court  in  apply- 
ing the  language  to  the  subject-matter. 

Insurance  Co.  v.   Sherwin-Williams   Co.,   23  C.   C.    (X.S.)    390. 

Roots   V.   Insurance   Co.,    1   Dis.   138,   12  0.   D.  R.  535. 

Harris   v.   Insurance   Co.,    1   C.   S.  C.   R.   361,    13  O.   D.   R.   5!)9. 

(b)  A  verbal  promise  that  the  policy  shall  cover  certain 
personal  property  on  the  farm  of  another,  which  promise  led 
up  to  and  was  used  to  induce  the  making  of  the  contract, 
may  be  shown  when  the  policy  does  not  definitely  express 
the  same. 

Walrath   v.  Tnsurnnco    Co..  0  C.  D.  233.    16   C.   C.   413. 
Insurance   Co.   v.   Walratli.   !l    C    D.  600,    17   C.   C.   500. 


§457  METZLER'S   OHIO   TRIAL    EVIDENCE  568 

456.  SUBJECT-MATTER— LAND   CONTRACTS. 

(a)  A  grant  of  "all  right,  title,  interest,  or  claim  to  any 

land  descended  to  me  from  A  or  B"  is  sufficient;  and  parol 

evidence  is  admissible  to  identify  the  land,  but  not  to  prove 

an  intention  contrary  to  the  terms  of  the  deed. 

Barton    v.   Morris,    ].">   Oh.   408. 

See    Stanibaugli    v.   Smith,    23    0.    S.    r)S4,   aO."). 

(b)  Extrinsic  evidence  has  been  held  admissible  to  iden- 
tify land  conveyed  as  a  tract  known  as  the  east  half  of  the 
southwest  division  of  a  section,  although  such  testimony 
shows  that  the  land  so  conveyed  was  less  in  quantity  than 
the  mathematical  half  of  the  division. 

Pchlief   V.   Hart.  29   0.   S.   150. 

(c)  In  the  sale  of  real  estate  or  a  lease  for  years  without 
a  reservation  of  a  growing  crop,  parol  evidence  may  be  intro- 
duced to  show  that  the  crop  was  growing  at  the  time,  and 
was  treated  as  personalty  and  not  intended  to  be  conveyed. 

Baker  v.  Jordan,  3  0.  S.  438. 
■    Youmans    v.    Caldwell,    4    0.    S.    71. 

(d)  "Where  a  city  by  ordinance  granted  a  right  to  lay  a 
track  in  a  street,  and  the  name  of  the  street  has  been  changed, 
this  may  be  shown  by  parol. 

Gunning   v.   Railway,    14   0.  D.   660. 

(e)  In  construing  a  contract  for  the  sale  of  realty,  parol 
evidence  may  be  admitted  to  explain  or  aid  the  description 
and  to  identify  the  property.  The  same  rule  applies  to  a 
chattel  mortgage. 

Graf  V.  Wirthweine,  1  Handy,  19,  12  0.  D.  R.  4. 
In    re    Rice,    18    N.    P.    (X-S.)    480. 

457.  SUBJECT-MATTER— THE  DEBT. 

(a)  A  mortgage  duly  executed,  acknowledged  and  re- 
corded is  not  invalid  from  a  want  of  certainty  in  the  descrip- 
tion of  the  debt  intended  to  be  secured;  it  may  be  shown  as 
between  the  parties  themselves. 

Hurd    V,   Robinson,   11    0.   S.   232. 
Cole    V.  Bank.    1.5    C.   C.    (N.S.)    315. 
Cole   V.   Bank,   S3   0.  S.   50. 


569  THE    PAROL    EVIDENCE    RULE  §457 

(b)  Parol  evidence  was  admitted  to  show  that  a  note  and 
mortgage,  absolute  in  form,  were  given  to  secure  unpaid  bal- 
ances on  a  future  running  account. 

Utter  V.  Hudnell,   7   A.  L.  R.   118,   6   0.  D.  R.  C21. 

(c)  Where  the  maker  of  a  note  gives  the  payee  an  order 
on  a  third  person  who  holds  a  fund  of  the  maker  requiring 
him  to  pay  the  note  out  of  it,  without  describing  the  note  or 
its  amount  or  payee,  the  order  may  be  made  certain  as  against 
other  claimants  by  parol  evidence  showing  that  the  note  was 
the  only  one  held  by  the  payee. 

Robbins  v.  Klein,  60  0.   S.   199. 


APPENDIX 


AN  OUTLINE  OF  EVIDENCE 


JUDICIAL  ADMISSIONS 

lu  civil  actions,  courts  do  not  hear  evidence  until  it  has  been 
determined  what  ultimate  facts  are  in  issue.  An  issue  of 
fact  arises  (1)  upon  a  material  allegation  in  the  petition 
denied  by  the  answer,  (2)  upon  a  set-off,  counterclaim, 
or  new  matter  presented  in  the  answer  and  denied  by 
the  reply,  (3)  upon  material  new  matter  in  the  reply, 
which  is  to  be  considered  as  controverted  by  the  adverse 
party  as  upon  a  denial  or  avoidance,  as  the  case  may 
require,   without   further  pleading. 

In  a  pleading,  facts  may  be  judicially  admitted  in  two  ways : 
(1)  by  admitting  specifically,  and  (2)  b}^  failure  to  deny. 

The  allegations  of  a  pleading  that  are  to  be  taken  as  true, 
if  not  denied,  are  material  allegations  of  fact ;  that  is, 
those  which  could  not  be  stricken  out  of  the  pleading 
without  leaving  it  insufficient. 

Aside  from  the  admissions  of  the  pleadings,  there  are  four 
methods  of  dispensing  with  evidence  by  judicial  admis- 
sions: (1)  by  an  agreed  case,  (2)  by  an  agreed  state- 
ment of  facts,  (3)  by  an  agreement  as  to  certain  facts, 
and    (4)    by  oral   admission  in   open   court. 

JUDICIAL  NOTICE 

Judicial  notice  is  the  recognition  of  well-known  facts  •\\nth- 
out  proof.  The  court  may  resort  to  any  proper  source 
of  information,  and  is  not  bound  by  tlie  rules  of  evi- 
dence. 

Courts  take  judicial  notice  of — 

Matters  of  notoriety,  such  as  (1)  Public  History  and  Geog- 
raphy;   (2)   Facts  of  Science  and  of  Art,  and   (3)   Matters 

of  Common  Knowledge. 

571 


572  APPENDIX 

Courts  also  take  judicial  notice  of — 

Matters  of  government,  such  as  (1)  Courts  and  their  Pro- 
ceedings; (2)  General  Law  and  Ordinances;  and  (3) 
Legislative  Proceedings. 

PRESUMPTIONS 

A  disputable  presumption  attaches  to  a  given  state  of  facts 
the  value  of  a  legal  prima  facie  case;  that  is,  one  suffi- 
cient to  establish. 

The  principal  presumptions  are  as  follows: 

(1)  The  presumption  of  innocence. 

(2)  Presumptions  relating  to  capacity  of  children  to 
commit   crimes. 

(3)  The  presumption  of  sanity. 

(4)  The  presumption  of  legitimacy. 

(5)  The  presumption  of  death  from  absence  of  seven 
years. 

The  maxim,  "omnia  praesumuntur, "  means  that  regularity 
makes  prima  facie  proof.  The  presumptions  in  favor  of 
(1)  Performance  of  Duty;  (2)  Regularity  of  Transactions, 
and  (3)  Validity  of  Official  Acts  come  from  this  maxim; 
but  these  presumptions  are  seldom  laid  down  as  a  legal 
prima  facie  case.  The  statements  of  these  maxims  are 
often  the  reasoning  of  the  court  on  its  conclusion  that  the 
evidence  was  sufficient  to  submit  to  the  jury,  or  that  the 
evidence  supports  the  verdict  or  judgment. 

Rules  relating  to  the  construction  of  writings  are  frequently 
stated  in  the  form  of  presumptions.  In  such  cases,  the 
effect  of  the  ruling  is  not  to  attach  a  legal  prima  facie 
significance  to  evidence  of  facts,  but  to  give  presumptively 
a  certain  meaning  to  the  words  of  a  contract  or  instru- 
ment in  writing. 

The  rule  on  the  burden  of  proof  is  sometimes  put  in  the  form 
of  a  presumption  in  favor  of  the  one  denying. 

A  presumption  of  fact  is  a  conclusion  drawn  from  circumstan- 
tial evidence.  Presumptions  of  fact  and  logical  inferences 
are  identical ;  and  they  must  be  submitted  to  the  jury, 
which  should  be  permitted  to  arrive  at  its  own  conclusion. 

The  presumption  of  continuance  is  one  of  fact,  which  is  fre- 
quently stated,  and  is  almost  as  well  known  as  any  pre- 


AN    OUTLINE    OF    EVIDENCE  573 

sumption  of  law.  It  is  a  general  principle  that  when  a 
condition  of  things  is  once  shown  to  exist,  there  is  a  pre- 
sumption that  it  continues  thereafter  until  the  contrary- 
is  shown. 

But  the  condition  of  anything  raises  no  presumption  that  its 
prior  condition  was  the  same ;  and  evidence  of  condition 
at  any  time  is  not  admissible  to  show  prior  condition. 

When  a  mere  logical  inference  is  stated  as  a  presumption,  it 
usually  signifies  that  the  evidential  fact  from  which  the 
inference  arose  was  relevant  and  could  not  be  excluded 
on  the  ground  of  irrelevancy. 

Conclusive  presumptions  of  law  are  not  evidence,  but  a  part 
of  the  substantive  law.  The  principal  conclusive  pre- 
sumptions are:  (1)  that  a  child  under  seven  is  incapable 
of  crime;  (2)  that  every  person  knows  the  law.  Other 
examples  of  conclusive  presumptions  are  to  be  found  in 
the  law  of  estoppel  and  in  the  statutes  of  limitation. 

THE  BURDEN  OF  PROOF 

The  general  rule  is  that  the  burden  of  proof  rests  on  the 
party  holding  the  affirmative;  this  means  that  a  denial 
of  allegations  places  the  burden  on  the  one  alleging.  But 
where  a  party  pleads  new  matter  in  confession  and  avoid- 
ance, he  assumes  the  burden  as  to  such  new  matter. 

When  the  legal  effect  of  the  allegations  in  an  answer  is  a 
mere  denial  of  the  averments  in  the  petition,  such  allega- 
tions can  not  be  regarded  as  new  matter.  However,  when 
facts  admissible  under  a  denial  are  pleaded  for  the  pur- 
pose of  narrowing  the  general  issue,  they  may  be  regarded 
as  new  matter. 

The  burden  of  proving  any  particular  fact  generally  lies  on 
that  person  who  wishes  the  court  to  believe  in  its  exist- 
ence ;  and  if  a  party  wishes  the  court  or  jury  not  to  accept 
as  true  an  inference  naturally  arising  from  evidence  ad- 
duced, the  burden  is  upon  him  to  make  correction  by 
cross-examination  or  otherwise. 

The  party  who  affirms  should  open  and  close  the  evidence; 
and  he  must  open  by  making  out  a  case  for  tlie  jury,  and 
close  with  a  preponderance  of  the  evidence  in  his  favor. 


574  APPENDIX 

When  all  the  evidence  in  chief  has  been  adduced,  the  parties 
will  then  be  confined  to  rebutting  evidence,  unless  the 
court  for  good  reasons  in  furtherance  of  justice  permits 
them  to  offer  evidence  in  their  original  cases. 

THE  SHIFTING  BURDEN 

The  burden  of  proof  never  shifts ;  but  the  duty  of  adducing 
evidence  is  shifted  by  presumptions  of  law,  by  presump- 
tions of  fact  of  the  stronger  kind,  and  by  evidence  strong 
enough  to  establish  a  prima  facie  case. 

The  party  holding  the  affirmative  is  the  only  party  who  is 
required  to  produce  a  preponderance  of  evidence  to  secure 
the  verdict.  His  opponent  need  do  no  more  than  counter- 
balance the  presumption  or  prima  facie  case  against  him ; 
because  evidence  of  equal  weight  prevents  a  preponder- 
ance on  the  other  side. 

"Where  the  subject-matter  of  a  negative  averment  relates  to 
the  adverse  party  personally,  and  lies  peculiarly  within 
his  knowledge,  the  averment  will  be  taken  as  true,  unless 
disproved  by  him.  This  is  a  rule  providing  that  a  prima 
facie  case  may  be  made  without  proof  of  negative  allega- 
tions under  certain  conditions. 

The  strong  presumptions  and  prima  facie  cases  account  for 
most  of  the  rules  requiring  clear  and  convincing  proof. 
Such  proof  is  required  (1)  to  impeach  the  record  of  offi- 
cial action;  (2)  to  establish  lost  instruments;  (3)  to  vary 
writings  formally  executed,  as  to  reform  an  instrument, 
or  to  engraft  a  trust  on  a  deed  absolute.  The  same  degree 
of  proof  is  also  required  to  establish  some  transactions 
not  favored  by  law ;  such  as  gifts,  and  contracts  between 
members  of  a  family  for  domestic  services. 

THE  DEGREE  OF  PROOF 

The  presumption  of  innocence  is  so  strong  that  it  can  be 
overcome  only  by  full  proof,  such  as  will  exclude  all 
reasonable  doubt  of  the  guilt  of  the  accused. 

Every  essential  element  in  the  charge  must  be  proved  beyond 
a  reasonable  doubt. 


AN    OUTLINE    OF    EVIDENCE  575 

By  the  plea  of  "not  guilty"  alone,  the  prisoner  restricts  him- 
self to  denying  and  disproving  the  facts  involved  in  the 
original  transaction,  including  all  the  accompanying  cir- 
cumstances. This  allows  such  defenses  as  alibi  and  want 
of  capacity  or  criminal  intent.  And  these  defenses  need 
not  be  proved  by  a  preponderance. 

When  the  accused  claims  to  control  the  legal  effect  of  facts 
by  the  alleged  existence  of  other  facts,  the  burden  is 
upon  him  to  show  a  preponderance  of  evidence  in  favor 
of  the  existence  of  the  latter.  Such  defenses  are  in  the 
nature  of  confession  and  avoidance,  and  include  (1)  In- 
sanity; (2)  Self-defense,  and  (3)  Duress. 

On  the  trial  of  civil  actions  the  issue  is  determined  in  accord- 
ance with  the  preponderance  or  weight  of  the  evidence. 
The  rule  is  that  he  who  affirms  must  prove ;  and  when  the 
whole  of  the  evidence  upon  the  issue  involved  leaves  the 
case  in  equipoise,  the  party  affirming  must  fail. 

The  proof  should  be  deemed  to  preponderate  in  favor  of  any 
disputed  fact,  whenever  its  existence  is  made  probable 
upon  a  full  and  fair  consideration  of  all  the  evidence 
adduced  for  and  against  it. 

The  issue  in  civil  actions  need  not  be  proved  beyond  a  reason- 
able doubt,  even  in  cases  wherein  the  claim  or  defense  is 
based  on  facts  which  amount  to  an  indictable  offense. 

On  the  trial  of  a  will  contest,  the  burden  of  proof  is  upon 
the  contesting  party ;  the  order  of  probate  is  prima  facie 
evidence  of  the  due  attestation,  execution,  and  validity 
of  the  will  or  codicil. 

In  negligence  cases  the  burden  of  proof  is  upon  the  party 
claiming  that  the  injury  was  done,  to  show  that  it  was 
occasioned  by  negligence,  carelessness,  or  wantonness  ;  and 
he  must  prove  the  reality  and  nature  of  the  injury. 

The  action  of  negligence  may  be  maintained  if,  upon  the 
whole  evidence,  the  negligence  of  the  defendant  is  estab- 
lished by  a  preponderance  of  evidence,  and  contributory 
negligence  of  the  plaintiff  is  not  shown  by  the  same  weight 
of  evidence. 

it  is  the  general  rule  that  oji  applications  in  special  proceed- 
ings, the  burden  of  proof  is  on  the  one  applying. 


576  APPENDIX 

COURT  AND  JURY 

A  trial  is  a  judicial  examination  of  the  issues,  whether  of 
law  or  of  fact,  in  an  action  or  proceeding.  Issues  arise 
on  the  pleadings  where  a  fact  or  conclusion  of  law  is 
maintained  by  one  party  and  controverted  by  the  other. 
They  are  of  two  kinds:  (1)  Issues  of  law;  and  (2)  Issues 
of  fact. 

Issues  of  fact  in  actions  for  the  recovery  of  money  or  specific 
real  or  personal  property  are  for  the  jury,  except  when 
the  judge  decides  that  there  is  not  a  scintilla  of  evidence. 

In  all  equity  cases,  and  when  a  jury  is  waived,  the  questions 
of  fact  are  for  the  court. 

All  issues  of  law,  and  the  facts  preliminary  to  the  admission 
of  evidence  are  also  for  the  court. 

The  passing  upon  the  credibility  of  witnesses  is  exclusively 
within  the  province  of  the  jury.  Even  the  maxim,  "falsus 
in  uno,  f alsus  in  omnibus, "  is  to  be  applied  by  the  jurors 
according  to  their  own  judgment. 

The  weight  and  the  sufficiency  of  the  evidence  are  matters  to 
be  determined  by  the  jury  from  the  quality  of  the  evi- 
dence. Both  the  credibility  of  witnesses  and  their  number 
should  be  considered.  The  jury  is  not  required  to  decide 
for  the  party  having  the  greater  number  of  witnesses ;  it 
may  believe  the  fewer  witnesses  on  the  other  side. 

Jurors  can  not  act  upon  particular  facts  resting  in  their  pri- 
vate knowledge,  but  should  be  governed  by  the  evidence ; 
they  may,  however,  judge  of  the  weight  and  force  of  that 
evidence  by  their  own  general  knowledge  of  the  subject 
of  the  inquiry. 

It  is  not  the  province  of  the  court  to  classify  witnesses,  such 
as  detectives,  abandoned  women  and  relatives,  and  give 
to  the  jury  what  the  experience  of  the  courts  may  be  in 
respect  to  a  class;  but  their  credibility  should  be  left  to 
the  jury.    The  rule  does  not  apply  to  accomplices. 

The  general  rule  is  that  positive  testimony  is  of  greater  weight 
than  negative  testimony.  But  the  rule  should  never  come 
in  conflict  with  the  general  rule  that  the  weight  of  the 
evidence  should  be  left  to  the  jury.  The  question  of 
the  weight  to  be  given  to  negative  testimony  often  arises 


AN    OUTLINE    OF    EVIDENCE  577 

in  railroad  and  other  accident  cases  Avliere  it  is  claimed 
that  signals  were  not  given. 
The  court  in  the  charge  should  separate  and  definitelr  state 
to  the  jury  the  issues  of  fact  made  in  the  pleadings.     It 
is  not  sufficient  to  read  the  pleadings  to  the  jury. 
A  cliarge  to  the  jury  should  be  a  plain  and  unambiguous  state- 
ment of  the  law  as  applicable  to  the  case  made  before  the 
jury  by  the  proof,  and  not  mere  abstract  legal  rules. 
The  court  in  charging  the  jury  may  properly  recite  what  is 
claimed  by  the  parties  to  be  proved,  where  this  is  fairly, 
and  not  argumentatively,  done. 
Instructions  advising  the  jury  of  the  object  for  which  particu- 
lar items  of  evidence  are  admitted,  and  cautioning  them 
against  being  misled  by  their  improper  use,   are   often 
necessary. 
When  the  evidence  is  such  that  more  than  one  inference  may 
be  drawn,  or  that  several  minds  may  reasonably  arrive 
at  different  conclusions,  the  case  should  be  submitted  to 
the  jury. 
"When  the  facts  are  conclusively  determined,  it  is  a  function 
of  the  court  to  apply  the  law  to  such  facts.     And  the 
facts  may  be  so  determined:    (1)  by  statements  of  counsel 
for  the  purpose  of  tlie  trial,  as  in  the  opening  statement 
to  the  jury;  (2)  by  failure  to  produce  a  scintilla  of  evi- 
dence;  (3)   by  the  concurrent  testimony  of  all  the  wit- 
nesses;   (4)   by  an  agreed  statement  of  facts;    (5)   by  a 
special  verdict;  or  (6)  by  the  answer  of  the  jury  to  in- 
terrogatories. 
In  mixed   questions   of  law   and  fact,   such   as   questions   of 
reasonableness,  probable  cause,  negligence  and  due  dili- 
gence, the  question  is  one  of  law  for  the  court  when  the 
material  facts  are  ascertained  or  admitted.    But  where  the 
facts  are  contested,  it  is  for  the  decision  of  the  jury  under 
instructions. 
The  general  rule  in  jury  eases  may  be  recapitulnted  asfolloAvs: 
The  tendency  of  evidential  facts  is  for  the  court ; 
The  weight  and  credibility  of  evidential  facts  are  for 

the  jur}' ; 
The  finding  of  ultimate  facts  is  for  the  jury; 
To  apply  the  law  to  ultimate  facts  is  for  the  court. 


578  APPENDIX 

ISSUE  AND  VARIANCE 

Evidence  should  correspond  to  the  allegations  of  the  pleading, 
but  where  the  pleading  is  only  indefinite,  the  courts  are 
liberal  in  admitting  evidence  to  prove  its  allegations,  be- 
cause it  might  have  been  made  definite  by  motion. 

And  when  there  is  a  variance,  that  is,  a  disagreement  between 
a  material  allegation  and  the  evidence,  and  it  does  not 
mislead  the  opposite  party  to  his  prejudice,  the  court  may 
direct  the  fact  to  be  found  according  to  the  evidence,  and 
order  an  immediate  amendment  without  costs. 

Evidence  that  will  make  a  material  variance,  and  prejudice 
the  adverse  party,  should  be  objected  to  by  him  when  it 
is  offered. 

It  is  error  to  admit  over  objection  evidence  substantially  dif- 
ferent from  the  allegations  of  the  petition. 

Such  evidence  should  be  excluded  until  the  plaintiff  has 
amended  his  petition  and  an  issue  is  made  up.  When  the 
court  is  satisfied  that  the  variance  is  prejudicial,  it  may 
order  amendment  upon  such  terms  as  are  just. 

Before  or  after  judgment  in  furtherance  of  justice  and  on 
such  terms  as  it  deems  proper,  the  court  may  amend  any 
pleading  by  inserting  other  allegations  material  to  the 
case. 

A  party  may  properly  object  to  the  introduction  of  any  evi- 
dence to  support  a  fatally  defective  pleading.  And  failure 
to  demur  does  not  forfeit  the  right.  The  objection  should 
be  presented  before  the  introduction  of  any  evidence. 

Where  evidence  is  admitted  at  the  trial  without  objection,  the 
court  may  allow  an  amendment  by  inserting  a  material 
allegation,  or  when  the  amendment  would  not  substan- 
tially change  the  claim  or  defense,  by  conforming  the 
pleading  to  the  facts  proved. 

Failure  of  proof  is  not  a  variance.  When  the  allegation  of 
the  claim  or  defense,  to  which  the  proof  is  directed,  is 
unproved,  not  in  some  particular  or  particulars  only,  but 
in  its  general  scope  and  meaning,  it  shall  not  be  deemed 
a  case  of  variance,  but  a  failure  of  proof. 


AN    OUTLINE    OF    EVIDENCE 


579 


The  material  allegations  or  those  which  could  not  be  stricken 
out  without  leaving  the  pleading  insufficient,  must  be 
proved.  The  substance  of  the  issue  must  be  proved  as 
alleged  ;  and  all  immaterial  averments  may  be  disregarded. 

A  failure  of  proof  or  a  variance  not  prejudicial  to  the  de- 
fendant, as  to  allegations  not  essential  to  a  recovery  is 
not  such  a  variance  as  will  defeat  the  plaintiff's  action. 

It  is  a  general  rule  that  a  defendant  who  makes  a^  general 
denial  must  adduce  evidence  that  disproves,  or  is  incon- 
sistent with  the  allegations  of  the  petition. 
A  defendant  who  can  not  truthfully  deny  the  facts  alleged  in 
the  petition,  but  is  able  to  show  new  matter  in  avoidance, 
should  set  up  the  new  matter  on  which  he  relies;  if  he 
fails,  and  objection  is  made  to  his  evidence,  it  will  be 
excluded. 

RELEVANCY 
All   evidence,   except   that   obtained  by  inspection,   is   either 
direct  or  indirect.     Evidence  is  direct  when  the  alleged 
fact    itself    is    affirmed    or    controverted.      Evidence    is 
indirect,   or  circumstantial,   when  there   is   adduced  evi- 
dence of  facts  collateral  to  the  alleged  fact,  but  so  related 
thereto  as  to  tend  by  inference  to  establish  or  disprove  it. 
Such  collateral  facts  are  evidential  facts ;  the  fact  sought 
to  be  proved  is  the  ultimate  fact. 
When  circumstantial  evidence  is  relied  upon  to  prove  a  fact, 
the  circumstances  must  be  proved  by  direct  evidence  ;  they 
can  not  be  inferred. 
The  first  test  of  the  admissibility  of  indirect  evidence  is  that 
the   evidential   facts  must  be  probative   of,   or  logically 
relevant  to,  some  fact  in  issue. 
After  issues  have  arisen  on  the  evidence,  the  rule  of  relevancy 
is  satisfied  if  the  evidence  is  relevant  to  the  incidental 
issues  made  by  the  proof. 
All  relevant  facts  which  are  not  excluded  by   any  rule   are 
admissible  for  any  of  the  following  purposes  in  so  far  as 
they  aid  in  determining  the  issues: 

(1)  To  show  that  any  document  is  genuine  or  other- 
wise. 

(2)  To  introduce  or  explain  a  fact  in  issue  or  relevant 
thereto. 


580  APPENDIX 

(3)  To  support  an  inference  suggested  by  any  such 
fact. 

(4)  To  rebut  an  inference  suggested  by  any  sueh  fact. 

(5)  To  prove  or  disprove  the  identity  of  a  person 
when  in  issue  or  relevant  thereto. 

If  the  evidential  fact  tends  to  prove  a  fact  in  issue,  the  evi- 
dence is  relevant ;  and  it  is  admissible  if  not  excluded  by 
some  other  rule.  In  other  words,  no  irrelevant  fact  is 
admissible ;  but  every  relevant  or  probative  fact  is  ad- 
missible unless  excluded  by  some  other  rule  of  evidence. 

There  are,  however,  some  positive  rules  of  exclusion.  The 
rule  confining  evidence  to  the  point  in  issue  excludes  all 
evidence  of  collateral  facts  which  are  incapable  of  afford- 
ing any  reasonable  inference  as  to  the  principal  matter 
or  fact  in  dispute.  The  evidential  fact  must  not  be  too 
remote.     This  is  the  first  rule  of  exclusion. 

Facts  entirelv  collateral  to  the  issue  are  not  admissible  in 
evidence.  The  reason  for  this  rule  is  that  such  evidence 
tends  to  draw  away  the  minds  of  the  jurors  from  the 
point  in  issue,  and  to  excite  prejudice  and  mislead  them ; 
and  moreover,  the  adverse  party,  having  had  no  notice 
of  such  a  course  of  evidence,  is  not  prepared  to  rebut  it. 


CHARACTER 

In  civil  cases  where  character  is  not  a  part  of  the  issue,  the 
general  rule  is  that  character  of  a  party,  or  of  any  person 
not  a  witness,  is  not  admissible. 

Evidence  of  bad  character  is  admissible  as  a  part  of  the  issue 
in  mitigation  of  damages  in  the  following  cases:  (1)  in 
libel  or  slander,  the  bad  character  of  plaintiff  as  to  the 
trait  assailed;  (2)  in  an  action  for  breach  of  promise, 
the  bad  character  of  plaintiff  for  chastity;  (3)  in  an  action 
for  seduction,  the  bad  character  of  the  person  seduced. 

When  evidence  of  bad  character  has  been  introduced,  evidence 
of  good  character  becomes  admissible. 

On  principle,  when  character  is  a  part  of  the  issue,  it  may 
be  proved;  and  when  good  character  is  an  element  of 
damage,  as  in  false  imprisonment  and  malicious  prosecu- 


AN    OUTLINE    OF    EVIDENCE  581 

tion,  bad  character  may  be  shoAvn  in  mitigation  of  dam- 
ages. 

So  also  evidence  is  admissible  to  sIioav  reputed  character  in 
several  cases. 

(1)  The  reputed  character  of  a  person  that  v\"as  under 
arrest,  and  who  is  plaintiff  in  an  action  for  mali- 
cious prosecution,  is  admissible  to  show  probable 
cause.  This  rule  applies  in  similar  cases  when 
reasonable  grounds  for  arrest  are  involved. 

(2)  The  reputed  character  of  the  deceased  as  a  dan- 
gerous man,  known  to  the  accused,  is  admitted 
on  behalf  of  the  accused,  when  he  is  charged 
with  homicide  and  he  pleads  self-defense.  Rule 
applies  in  assault  and  battery. 

(3)  The  reputed  character  of  an  employe  for  incom- 
petency is  admissible  to  charge  the  employer  with 
knowledge. 

(4)  The  reputation  of  other  third  persons  sometimes 
becomes  relevant,  as  the  reputation  of  associates, 
or  of  physicians  prescribing  liquors,  or  of  per- 
sons frequenting  a  place. 

There  are  three  cases  in  which  such  evidence  is  admitted  for 
the  purpose  of  showing  the  probabilitj^  that  a  person  would 
do  an  act. 

(1)  In  criminal  cases,  the  prosecution  may  show  the 
defer dant's  bad  character,  but  only  after  the  ac- 
cused has  offered  evidence  of  his  good  character. 
This  rule  does  not  exclude  his  character  as  a 
witness. 

(2)  The  character  of  complainant  for  chastity  in  a 
case  of  rape  is  admissible  against  her  as  affecting 
the  probability  of  her  consent. 

(3)  The  character  of  deceased  in  a  homicide  charge 
is  admissible  in  favor  of  the  accused,  where  the 
issue  of  self-defense  is  made.  [Probably  no  case 
in  Ohio  on  this  rule.] 

The  court  may  limit  to  ten  the  number  of  witnesses  that  may 
be  examined  as  to  reputation  on  the  trial  of  certain  crim- 
inal eases,  unless  the  payment  of  the  fees  of  those  in  ex- 
cess of  ten  is  provided  for  by  the  party  calling  them. 


582  APPENDIX 

KNOWLEDGE 

When  knowledge  of  a  party  at  a  certain  time  is  a  material 
fact,  the  acts  and  conduct  of  such  party  which  tend  to 
show  knowledge  at  that  time,  and  circumstances  such 
as  would  have  given  him  notice,  are  relevant,  even  though 
such  facts  are  not  in  issue. 

Such  evidence  has  been  admitted  to  show  (1)  that  one  had 
notice  of  bankruptcy  proceedings;  (2)  that  accused  had 
knowledge  that  a  note  was  counterfeit;  (3)  that  defend- 
ant knew  his  statements  were  false ;  (4)  that  party  took 
a  check  with  notice;  (5)  that  city  had  notice  of  a  defect 
in  a  sidewalk. 

Where  scienter  is  a  necessary  element,  and  evidence  of  similar 
crimes  tends  to  show  knowledge,  such  crimes  may  be 
shown.  It  has  been  shown  (1)  that  accused  had  in  his 
possession  similar  counterfeits;  (2)  that  he  had  passed  a 
similar  counterfeit ;  (3)  that  the  same  persons  had  been 
engaged  in  a  similar  conspiracy;  (4)  that  defendant  had 
knowingly  received  and  sold  stolen  goods  at  a  former 
time. 

Similar  frauds  are  also  admissible,  such  as  that  defendant 
made  false  representations  to  others. 

Similar  accidents  or  occurrences  are  admissible  to  show  de- 
fendant's knowledge  of  defects. 

Knowledge  may  be  shown  by  evidence  of  reputation  (see 
Character) . 

Reputation  of  houses  may  also  be  put  in  evidence  to  show 
knowledge,  as  that  they  are  public  resorts  or  gambling 
places. 

MOTIVE 

It  is  a  general  rule  that  the  motive  with  which  a  lawful  act 
is  done  is  not  relevant.  But  when  there  is  a  question 
whether  an  illegal  act  was  done  by  any  person,  any  fact 
which  supplies  a  motive  for  such  an  act  is  relevant. 

The  commission  of  a  prior  crime  may  be  shown  for  the  pur- 
pose of  furnishing  a  motive  for  the  commission  of  the 
crime  charged  if  such  prior  crime  is  so  related  to  the 
latter  as  to  have  a  logical  connection  therewith,  and  rea- 
sonably to  disclose  a  motive. 


AN    OUTLINE    OF    EVIDENCE  583 

INTENT 

When  the  intent  of  a  part}'  is  a  part  of  the  matter  in  issue, 
evidence  may  be  given  of  his  acts  and  conduct  not  in 
issue,  if  they  tend  to  establish  his  intent  in  doing  the  act 
in  question.  For  example,  the  intent  to  deliver  a  deed, 
to  abandon  an  easement  or  to  revoke  a  will. 

Where  the  guilt  of  a  person  depends  upon  whether  the  act 
was  done  with  intent,  or  with  specific  intent,  such  as  as- 
sault with  intent  to  do  other  violence,  collateral  facts  in 
which  he  bore  a  part  and  which  tend  to  establish  such 
intent  are  admissible  in  evidence. 

Other  similar  acts  and  offenses  tending  to  show  intent  are 
admissible.  Other  false  receipts  and  other  solicitations 
of  bribes  have  been  admitted  for  the  purpose.  Other 
similar  offenses  must  be  proved  by  the  state  beyond  a 
reasonable  doubt. 

MALICE 

Indirect  evidence,  such  as  previous  threats,  which  tend  to 
show  malice,  when  it  is  material,  is  admissible. 

In  tort  actions  which  involve  fraud,  malice,  insult  or  reck- 
lessness, the  defendant  may  show  all  facts  which  tend  to 
rebut  malice  and  mitigate  damages. 

Where  malice  is  an  essential  ingredient  of  a  tort  or  an  offense, 
such  as  malicious  prosecution  or  malicious  destruction  of 
property,  evidence  that  the  defendant  acted  on  legal  advice 
is  admissible  to  show  absence  of  malice. 

In  libel  and  slander,  falsity  and  other  similar  offenses  are 
admissible  to  show  malice ;  and  defendant  may  prove,  in 
rebuttal,   facts  which  misled  him  and   caused  his  belief. 

MENTAL  SUFFERING 

When  mental  suffering  is  material  to  tho  issue,  as  in  a  suit 
for  dog-bites  or  false  arrest,  the  plaintiff  may  testify  as 
to  the  effect  upon  his  mental  or  nervous  system. 

GOOD   FAITH 

Where  a  person  does  an  act  apparently  criminal,  the  excusing 
circumstances  may  be  given  in  evidence  to  show  his  good 
faith  where  that  is  material,  or  that  he  was  ignorant  of 
the  facts  that  would  make  his  acts  criminal 


584  APPENDIX 

Intoxication  is  no  defense  to  a  prosecution  for  crime.  It  is 
only  allowed  to  rebut  guilty  knowledge,  deliheration  and 
premeditation  or  an  intent  requiring  nice  discrimination, 
and  should  go  no  further. 

THE  HEARSAY  RULE 

Hearsay  is  the  evidence  of  those  who  relate,  not  what  they 
know  themselves,  but  Avhat  they  have  heard  from  others. 
Such  mere  recitals  or  assertions,  whether  oral  or  written, 
can  not  be  received  in  evidence. 

Evidence  of  a  witness  that  he  had  heard  or  understood  that 
a  statement  Avas  a  fact  is  hearsay.  But  it  is  not  hearsay 
for  a  witness  to  state  that  he  had  heard  of  a  certain  trans- 
action, when  the  object  of  the  question  is  to  aid  the 
memory. 

The  Hearsay  Rule  is  said  to  be  satisfied,  and  is  not  applicable 
to  (1)  testimony  by  deposition,  and  (2)  testimony  at  a 
former  trial. 

Statements  or  Avords  that  are  evidence  of  other  facts,  and 
not  evidence  of  a  fact  mentioned  therein  are  not  hearsay, 
such  as  the  words  of  a  party  that  show  his  intent. 

And  when  the  question  is  Avhether  a  person  acted  prudently, 
wisely  or  in  good  faith^  as  in  making  an  arrest,  the 
information  on  which  he  acted,  whether  true  or  false,  is 
original  and  not  hearsay  evidence. 

Upon  the  same  principle,  it  is  considered  that  evidence  of 
general  reputation,  reputed  ownership,  public  rumor,  gen- 
eral notoriety,  and  the  like,  though  composed  of  the 
speech  of  third   persons  not  under  oath,  is  not  hearsay. 

Statements  or  words  material  as  a  part  of  the  issue,  as  the 
words  used  in  slander  or  libel,  and  the  statements  con- 
stituting a  contract  or  false  representations  are  not  hear- 
say. 

And  all  statements  or  words  that  are  a  part  of  the  res  gestae, 
sometimes  termed  "verbal  acts,"  are  excluded  from  the 
hearsay  rule. 


AN    OUTLINE    OF    EVIDENCE  585 

EXCEPTIONS  TO  THE  HEARSAY  RULE. 

Declarations  of  deceased  persons  about  family  history  are 
excepted ;  but  -when  made  post  litem  motam  are  inad- 
missible. The  rule  of  admission  is  restricted  to  the  dec- 
larations of  deceased  persons  who  were  related  by  blood 
or  marriage  to  the  persoii,  and  therefore  interested  in  the 
succession  in  question. 

Declarations  of  deceased  persons  in  regard  to  reputation  on 
matters  of  public  or  general  ijiterest  are  admitted,  not- 
withstanding the  hearsay  rule.  Declarations  in  regard  to 
an  ancient  custom  is  an  example.  The  rule  is  often  ap- 
plied to  private  boundary  disputes. 

Declarations  of  a  deceased  person  against  third  persons  not 
claiming  under  him,  are  admitted  on  the  ground  that  they 
were  made  against  his  pecuniary  interest,  and  it  should 
appear  that  he  has  peculiar  means  of  knowledge  of  the 
subject-matter  of  the  declarations. 

Statistical  and  mathematical  tables,  such  as  almanacs  and 
mortality  tables  and  regular  commercial  publications,  are 
not  hearsay. 

An  entry  made  in  a  professional  capacity  or  in  the  usual  course 
of  business  at  the  time  of  the  transaction  by  a  person 
legitimately  connected  therewith,  and  not  a  party  to  the 
suit,  but  who  is  shown  to  have  had  means  of  knowledge 
and  no  interest  in  misstating  the  facts,  is  admissible  in 
evidence. 

Dying  declarations  on  circumstances  of  death  in  abortion  and 
in  homicide  cases,  fall  within  the  exceptions  to  hearsay. 
They  may  be  oral,  in  writing,  or  by  signs.  It  should 
be  made  to  appear  to  the  court  by  preliminary  evi- 
dence not  only  that  they  were  made  in  articulo  mortis, 
but  also  made  under  a  sense  of  impending  death,  w^hich 
excluded  from  the  mind  of  the  dying  person  all  hope  or 
expectation  of  recovery. 

Admissions  and  confessions  may  be  regarded  as  exceptions  to 
the  hearsay  rule,  because  they  are  evidence  of  facts  stated 
in  them.  They  are  introduced  to  prove  the  issue,  and  not 
merely  to  discredit  the  witness. 


586  APPENDIX 

ADMISSIONS 

The  admissions  of  a  party  against  his  interest  are  admitted 
on  the  ground  that  the  matter  declared  is  probably  true. 
The  interest  must  be  subsisting  at  the  time  of  the  admis- 
sion. Constraint  will  not  avoid,  but  fraud  and  imposition 
will. 

A  party  is  not  estopped  from  denying  the  truth  of  his  own 
statements,  unless  they  were  made  in  bad  faith  or  to  the 
prejudice  of  the  adverse  party.  If  the  admission  was 
calculated  to  and  did  in  fact  mislead  the  other  party,  who, 
acted  in  good  faith  and  with  reasonable  diligence,  it  will 
estop  the  party  making  it,  although  made  in  good  faith. 

The  whole  statement  is  admissible.  If  a  party's  admission  is 
testified  to  by  a  witness,  such  party  may  cross-examine 
the  witness  as  to  other  parts,  or  he  may  call  another  wit- 
ness and  show  the  whole  conversation.  But  the  party 
can  not  rebut  admissions  by  showing  later  statements  to 
others. 

Admissions  may  be  oral,  and  may  be  made  in  a  foreign  lan- 
guage, or  through  an  interpreter. 

Admissions  may  be  in  writing.  Signed  statements  or  even 
writings  of  third  persons,  Avhen  admitted  to  be  correct, 
may  be  competent  as  admissions. 

The  admission  must  have  been  made  by  a  real  and  necessary 

party,  or  one  identified  with  him. 
The  statement  of  a  third  person  to  whom  a  party  has  referred 

for  information  in  regard  to  a  matter  is  competent  as  an 

admission  of  such  party. 
The   acts  and   admissions   of   a   grantor  respecting   his   title, 

which  would  be   admissible   against   him,   are   admissible 

against  his  grantee.    But  the  rule  does  not  apply  to  acts, 

etc.,  before  the  commencement  of  grantor's  title,  or  after 

he  has  parted  with  his  title. 
"Where  there  is  a  joint  relationship  existing  between  two  or 

more  parties-defendant  in  the  same  action,  an  admission 

made  by  one,  concerning  the  subject-matter  in  dispute,  is 

admissible  as  against  his  co-defendants. 


AN    OUTLINE    OF    EVtDENCE  587 

But  -when  there  are  several  parties-defendant  whose  interests 
are  not  joint,  but  merely  common,  such  as  co-heirs,  the 
admissions  of  one  are  not  competent  against  the  others. 

(See  acts  and  admissions  of  agents,  partners,  and  co-conspira- 
tors in  the  subject  of  Res  Gestae.) 

Admissions  may  be  implied  from  the  acquiescence  of  a  party. 
But  to  have  the  effect  of  an  admission,  the  acquiescence 
must  exhibit  some  act  of  the  mind  and  amount  to  volun- 
tary demeanor  or  conduct  of  the  party — direct  declara- 
tions of  that  kind  which  naturally  call  for  contradiction — 
or  some  assertion  made  to  the  party  with  respect  to  his 
right  which,  by  his  silence,  he  acquiesces  in.  And  the 
party  should  be  allowed  to  explain  his  silence. 

The  ordinar}^  inference  where  a  party  fails  to  offer  proof  of 
what  he  ought  to  prove,  if  it  exists,  is  that  the  evidence 
w^ould  have  been  unfavorable  to  him,  and  therefore  he 
withheld  it.  And  the  party  in  this  case  may  explain  his 
omission  to  call  a  witness. 

Admissions  made  in  treating  for  settlement  are  not  admissible. 
The  fact  that  an  offer  to  compromise  the  matters  in  dis- 
pute between  the  parties  was  made,  is  incompetent,  either 
as  indirect  evidence  or  as  an  admission.  However,  accord 
and  satisfaction  may  be  shown. 

An  offer  to  confess  judgment  is  not  to  be  deemed  an  admission 
of  the  cause  of  action,  nor  of  the  amount  to  which  the 
plaintiff  is  entitled ;  and  it  can  not  be  given  in  evidence 
or  mentioned  on  the  trial. 

It  is  a  general  rule  of  evidence  that  the  declarations  of  a 
party  are  admissible  in  evidence  against  liim  l)ut  not  in 
his  favor,  as  such  are  considered  solf-serving. 

For  instance,  a  written  statement  made  by  a  party  after  an 
event  will  not  be  admitted  to  substantiate  his  own  testi- 
mony. 

Admission  without  objection  of  part  of  a  self-serving  declara- 
tion, does  not  open  the  door  for  the  other  parts. 

However,  the  declarations  of  a  party  are  admissible  in  his 
favor  for  the  purpose  of  showing  the  state  of  his  mind 
when  that  is  material,  as  in  repelling  an  imputation  of 
fraud. 


588  APPENDIX 

CONFESSIONS 

Confessions  are  declarations  against  interest  by  the  accused 
concerning  his  participation  in  a  crime. 

They  are  judicial  or  extrajudicial ;  and  it  must  first  be  shown 
that  an  extrajudicial  confession  was  voluntary ;  for  no 
man  should  be  required  to  give  incriminating  evidence 
against  himself. 

Confessions  made  through  the  influence  of  hopes  or  fears,  in- 
duced by  promises  of  temporal  benefit  or  threats  of  dis- 
advantage, are  involuntary  and  wholly  inadmissible. 

"When  induced  by  threats  or  promises  made  by  one  having 
authority  over  the  prosecution,  they  are  presumed  to  be 
involuntary.  "When  extorted  by  duress,  they  can  not  be 
regarded  as  voluntarv ;  but  fraud  and  deceit  will  not  make 
a  confession  involuntary,  unless  they  have  a  tendency  to 
make  him  swerve  from  the  truth. 

At  a  preliminary  hearing,  from  which  the  jury  may  be  ex- 
cluded, the  judge  should  determine  how  the  confession 
was  produced.  But  the  judge  may,  if  the  evidence  is 
conflicting,  submit  the  question  to  the  jury  with  instruc- 
tions to  disregard  the  evidence  if  they  fi.nd  the  confession 
to  be  involuntary. 

The  burden  of  showing  that  a  confession  was  involuntary 
rests  on  the  accused,  who  may  cross-examine  the  witness 
and  call  other  witnesses. 

The  accused  is  entitled  to  have  the  Avhole  confession  given  to 
the  jury,  the  exculpatory  as  well  as  the  inculpatory  parts. 
Its  weight  is  for  the  jury. 

Confessions  are  evidence  against  the  person  who  confesses,  and 
not  against  accomplices. 

"When  a  confession  has  been  reduced  to  Avriting,  both  the  oral 
and  the  written  confessions  mav  go  to  the  jury.  And  the 
trial-court  may,  in  its  discretion,  send  a  Avritten  confes- 
sion to  the  jury-room. 

Before  an  extrajudicial  confession  is  admissible,  tliere  must 
be  some  evidence  outside  of  the  confession  tending  to 
establish  the  corpus  delicti.  This  means  the  body  or  sub- 
stance of  the   crime,  included  in  which  are  usuallv  two 


AN    OUTLINE    OF    EVIDENCE  589 

elements:  (1)  the  act,  and  (2)  the  criminal  agency  of  the 
act.  It  is  sufficient  if  there  is  some  evidence  outside  of  the 
confession  that  tends  to  prove  some  material  element  of 
the  crime  charged. 
If  the  accused  is  convicted  by  judicial  confession,  that  is,  in 
open  court,  the  judge  will  examine  the  -witnesses,  deter- 
mine the  degree  of  the  crime,  and  pronounce  sentence 
accordingly. 

RES  GESTAE 

Every  fact  that  is  so  connected  with  a  fact  in  issue  as  to  form 
part  of  the  same  transaction  or  occurrence,  though  not  in 
issue,  is  admissible  in  evidence  if  it  tends  to  prove  or  dis- 
prove any  fact  in  issue. 

And  a  party  introducing  part  of  a  transaction  or  occurrence 
will  not  be  heard  to  object  to  other  material  facts  occur- 
ring at  the  same  time. 

"When  a  person  does  any  act  that  is  material  to  be  understood, 
as  when  he  changes  his  residence  or  goes  upon  a  journey, 
his  declarations  made  at  the  time  and  expressive  of  its 
character,  motive  or  object,  are  regarded  as  verbal  acts, 
indicating  a  present  purpose  and  intention,  and  are  there- 
fore admitted  in  evidence.  But  self-serving  declarations 
are  exchided. 

Exclamations  become  a  part  of  the  res  gestae  when  tliey  are 
involuntary  and  involve  no  intellectual  process. 

The  admissibility  of  exclamations  is  determined  by  the  causal, 
logical  or  psychological  relation  of  such  exclamations  with 
the  primary  facts  in  controversy.  This  applies  equally 
to  participants,  by-standers  and  persons  incompetent  to 
be  witnesses. 

"When  a  party  has  been  injured,  a  physician  called  for  treat- 
ment may  testify  what  the  patient  said  to  him  about  his 
condition.  This  would  be  a  verbal  act.  But  if  the  physi- 
cian was  called  to  prepare  liini  as  nn  expert  witness,  the 
statements  to  him  would  be  self-servincr. 

Exclamations  of  the  sick  may  be  testified  to  by  non-expert 
witnesses. 


590  APPENDIX 

In  a  prosecution  for  rape  or  for  assault  with  intent  to  commit 
rape,  the  substance  of  what  the  prosecutrix  said  or  the 
declarations  made  by  her  immediately  after  the  offense 
may  be  given  in  evidence  in  the  first  instance  to  corroborate 
her  testimony.  But  such  evidence  is  not  admissible  in 
chief  to  prove  the  commission  of  the  offense. 

ADMISSIONS  OF  AGENTS 

The  universal  rule  is  that  the  declarations  of  an  agent  are 
only  admissible  against  the  principal  when  made  in  per- 
forming the  business  of  the  principal,  or  professing  to  act 
for  the  principal  in  the  doing  of  some  act  within  the 
apparent  scope  of  his  authority. 

It  is  because  the  declaration  of  an  agent  is  a  verbal  act  and 
part  of  the  res  gestae,  that  it  is  admissible;  and  whenever 
what  he  did  is  admitted  in  evidence,  then  it  is  competent 
to  prove  what  he  said  about  the  act  while  he  was  doing  it. 

The  statements  of  mere  employes  who  are  charged  with  specific 
duties,  such  as  a  doorkeeper  or  a  driver,  can  not  be  offered 
in  evidence  to  bind  the  employer,  when  it  appears  that 
such  employes  had  no  such  control  or  authorit}^  as  would 
make  their  admissions  competent. 

The  admissions  or  conversations  of  the  agents  of  a  corpora- 
tion, when  engaged  in  the  precise  business  intrusted  to 
them,  are  admissible. 

Where  the  act  of  the  partner  is  within  the  scope  of  the  part- 
nership, a  declaration  made  by  him  at  the  time  of  the 
transaction  is  competent  to  show  that  the  act  was  done 
in  behalf  of  the  partnership. 

The  acts  and  declarations  of  a  conspirator  may,  after  prima 
facie  proof  of  conspiracy,  be  given  in  evidence  to  charge 
his  fellow-conspirator ;  but  the  acts  and  declarations  ad- 
mitted must  be  those  only  which  were  made  and  done 
during  the  pendency  of  the  criminal  enterprise,  and  in 
furtherance  of  the  common  object. 


AN    OUTLINE    OF    EVIDENCE  591 

OBJECTIONS  AND  EXCEPTIONS 

When  an  objection  is  made  to  the  introduction  of  evidence, 
the  court  must  decide  whether  it  is  admissible  or  not ;  if 
either  of  the  parties  upon  hearing  the  decision  is  not 
satisfied,  he  may  except. 

When  it  is  desired  to  submit  to  a  reviewing  court  exceptions 
to  rulings  on  evidence,  they  must  be  made  a  part  of  the 
record  by  means  of  a  bill  of  exceptions. 

No  exception  will  be  regarded  unless  it  is  material  and  prej- 
udicial to  the  substantial  rights  of  the  party  excepting; 
and  such  party  must  not  be  responsible  for  such  error. 

A  party  can  not  be  permitted,  either  intentionally  or  unin- 
tentionally, to  lead  a  court  into  the  commission  of  an  error, 
and  then  procure  a  reversal  of  the  judgment  for  an  error 
for  which  he  was  actively  responsible. 

When  improper  evidence  is  admitted,  exception  must  be  taken 
for  review,  and  the  record  must  show  the  evidence  or  its 
tendency. 

The  admission  of  improper  but  indecisive  evidence  is  not  prej- 
udicial, especially  when  substantial  justice  has  been  done. 

The  fact  that  a  party  was  examined  on  a  matter  not  at  issue, 
or  that  the  adverse  party  offered  evidence  of  matters  he 
was  not  bound  to  prove,  will  not  avail  on  error  unless 
prejudicial. 

When  the  effect  of  improper  and  prejudicial  evidence  is  cured 
by  subsequent  explanation,  it  can  not  thereafter  be  re- 
garded as  prejudicial. 

If  proper  evidence   of  a  party  is   excluded,   exception  must 
be  taken  for  review,  and  a  statement  of  expected  proof 
must  be  made. 

The  exclusion  of  proper  but  indecisive  evidence  is  not  preju- 
dicial. 

It  is  not  error  to  exclude  evidence  that  is  merely  cumulative ; 
but  it  is  prejudicial  error  to  exclude  corroborative  evi- 
dence when  it  is  needed  to  support  an  interested  witness 
or  one  whose  credibility  has  been  attacked. 

If  the  evidence  intended  to  be  elicited  by  the  excluded  ques- 
tion was  in  fact  afterward  received,  so  that  no  preju- 
dice was  done,  the  exception  can  not  be  sustained. 


592  APPENDIX 

TWELVE  PRACTICAL  RULES 

In  the  trial-court,  it  will  be  helpful  to  keep  iu  mind  the  fol- 
lowing practical  rules : 

(1)  In  making  objection,  be  prompt.  An  objection 
to  a  question  is  too  late  after  the  answer  is  not 
what  is  expected. 

(2)  In  making  objection,  be  specific.  When  evidence 
is  introduced,  i^art  of  which  is  inadmissible,  ob- 
ject to  the  inadmissible  part  only.  And  when 
evidence  is  offered,  do  not  offer  inadmissible 
evidence  with  evidence  that  is  admissible. 

(3)  When  the  introduction  of  evidence  is  objected  to, 
counsel  should  be  specific  in  stating  the  ground 
of  his  objection  (except  Avhen  the  ground  is 
obvious).  And  when  a  specific  objection  is  made, 
this,  on  error,  is  a  waiver  of  all  other  objections. 

(4)  AYhen  evidence  is  offered  generally,  and  it  is 
admissible  for  one  i:)urpose  only,  it  is  sufficient 
to  object  to  the  evidence  on  the  ground  that  it  is 
not  restricted  to  its  proper  purpose. 

(5)  When  evidence  is  admitted  for  one  purpose  only 
without  objection,  the  adverse  party  should  ask 
the  court  to  instruct  the  jury  to  limit  its  effect 
to  its  proper  purpose. 

(6)  When  evidence  is  offered  for  a  particular  pur- 
pose, and  it  is  objected  to  for  that  purpose,  and 
the  court  admits  it  generally,  the  court  should 
be  asked  to  say  to  the  jury  that  the  evidence  is 
not  proof  of  the  particular  fact  for  Avhich  it  is 
offered.      I  No  authority  in  Ohio.] 

(7)  When  evidence  is  admitted  against  objection,  and 
it  is  altogether  improper,  it  is  prejudicial  error; 
and  it  is  immaterial  whether  or  not  the  objecting 
party  stated  the  right  or  wrong  reason,  or  stated 
any  reason  at  all  for  his  objection. 

(8)  When  a  question  is  asked  of  a  wntness  on  direct 
examination  which  is  objected  to,  and  the  objec- 
tion is  sustained,  the  ruling  will  not  be  reviewed 


AN    OUTLINE    OF    EVIDENCE  593 

on  error,  unless  the  exception  taken  shows  \vhat 
it  was  proposed  to  prove. 
(9)  When  evidence  is  offered  and  properly  rejected 
at  the  time,  and  subsequent  developments  in  the 
case  render  it  admissible,  the  ruling  will  rot  be 
erroneous  unless   the   evidence   is   offered   again. 

(10)  If  it  is  desired  that  evidence  already  admitted 
should  be  ruled  out,  the  party  should,  before  the 
case  is  closed,  point  out  the  evidence  specifically 
and  move  that  it  be  taken  from  the  jury.  This 
rule  is  applied  to  evidence  admitted  condition- 
ally ;  and  also  to  answers  wholly  or  partly  inad- 
missible, in  Avhich  ease,  the  motion  should  be 
promptly  made. 

(11)  A  motion  to  rule  evidence  from  the  jury  em- 
bracing admissible  as  well  as  inadmissible  evi- 
dence should  be  overruled ;  if  it  is  not,  the  party 
affected  thereby  should  except  to  the  exclusion 
of  the  admissible  evidence,  which  should  be 
clearly  indicated. 

(12)  When  issues  arise  on  several  defenses,  the  plain- 
tiff should  submit  interrogatories  to  the  jury  to 
ascertain  upon  what  issue  the  verdict  is  baged, 
if  a  general  verdict  should  be  found  for  the 
defendant. 

REAL  EVIDENCE 

There  are  three  kinds  or  forms  of  evidence:  (1)  Real  Evidence; 
(2)  Oral  Evidence,  and  (3)  Written  Evidence.  These  three 
subjects  will  be  treated  in  the  order  named. 

When  the  existence  or  observable  qualities  of  a  material  object 
are  in  issue,  or  are  relevant  thereto,  the  court  may  allow 
the  jury  to  inspect  the  object.  This  is  what  is  usually 
called  real  evidence,  sometimes  autoptic  proference ;  it  in- 
cludes all  inspections  except  those  of  documents  and  other 
writings. 

In  civil  actions,  the  view  by  the  jury  of  the  property  which  is 
the  subject  of  litigation,  or  of  the  place  where  a  material 
fact  occurred,  is  solely  for  the  purpose  of  enabling  them 


594  APPENDIX 

to  apply  the  evidence  offered  upon  the  trial.  This  is  also 
the  rule  in  appropriation  and  in  criminal  cases. 

In  criminal  cases,  the  accused  has  a  right  to  be  present  at 
the  view,  but  this  is  a  right  which  he  may  waive. 

In  ditch  cases,  on  appeal  to  the  probate  court  from  the  order 
and  finding  of  a  joint  board  of  county  commissioners,  the 
jury  may  consider  in  evidence  facts  made  known  to  them 
personally  from  an  actual  view  of  the  premises. 

The  trial-judge  may,  on  application  at  a  reasonable  time,  re- 
quire a  party  to  submit  to  physical  examination ;  and  the 
physician  making  it  can  not  claim  privilege,  but  may  be 
required  to  testify. 

This  rule  applies  to  a  plaintiff  asking  damages  for  personal 
injuries ;  and  if  he  refuses  to  comply  with  a  proper  order, 
the  judge  may  dismiss  the  action  or  exclude  his  evidence. 

The  rule  is  also  applied  to  an  action  for  breach  of  promise, 
where  the  defense  is  physical  incapacity  of  plaintiff. 

In  a  criminal  case,  the  court  may  not  require  such  an  exami- 
nation of  accused;  but  he  may  submit  without  objection. 

A  photograph  may  be  admitted  in  evidence  when  it  appears 
to  have  been  accurately  taken,  and  is  proved  to  be  a 
correct  representation  of  the  subject  in  controversy  or  of 
some  subject  incident  to  it,  which  subject  can  not  be  pro- 
duced, and  the  photograph  is  of  such  a  nature  as  to  throw 
light  upon  the  disputed  point. 

Photographs  have  been  admitted — 

(1)  Of  a  testator  in  a  will  case  ; 

(2)  Of  an  acrobat  to  show  his  skill ; 

(3)  Of  premises  where  an  accident  occurred; 

(4)  Film  photographs  of  a  moving  picture ;  and 

(5)  X-ray    photographs   to    show    the    nature    of   an 
injury. 

A  picture  of  a  device  need  not  be  accurate  or  exact.  If  it 
shows  some  matter  directly  bearing  upon  the  subject  under 
investigation  and  will  aid  the  jury,  it  may  be  admitted 
with  an  explanation  of  how  it  differs  from  that  which  is 
being  investigated. 


AN    OUTLINE    OF    EVIDENCE  595 

Experiments  made  outside  of  court  and  not  in  the  presence  of 
the  jurj%  are  sometimes  explained  by  witnesses. 

Experiments  are  allowed  before  the  jury  outside  of  court  by 
agreement  of  parties. 

Models  of  machinery  for  illustrative  purposes  are  received  in 

evidence. 
Appliances,  such  as  a  dictograph,  may  be  admitted  in  evidence, 

with  an  explanation  and  a  demonstration  of  its  operation. 

The  mere,  fact  that  exhibits  offered  in  evidence  are  of  con- 
siderable bulk  or  weight  does  not  excuse  a  failure  to  attach 
them  to  the  bill  of  exceptions  or  to  properly  mark  them 
for  identification  on  review  on  the  weight  of  the  evidence. 

ORAL  EVIDENCE 

Competency  of  Witnesses 

All  persons  are  competent  witnesses  except  those  of  unsound 
mind  and  children  under  ten  years  of  age,  who  appear 
incapable  of  receiving  just  impressions  of  the  facts  and 
transactions  respecting  which  they  are  examined,  or  of 
relating  them  truly. 

A  person  affected  with  insanity  is  competent  under  the  fore- 
going rule,  if  it  appears  that  he  is  able  to  apprehend  the 
obligation  of  an  oath. 


'e* 


No  person  shall  be  disqualified  as  a  witness  in  a  criminal 
prosecution  by  reason  of  his  interest,  as  a  party  or  other- 
wise, or  by  reason  of  his  conviction  of  crime.  But  such 
interest  or  conviction  may  be  shown  for  the  purpose  of 
affecting  credibility. 

In  criminal  proceedings,  an  accused  person  is  a  competent 
witness  at  his  own  request.  No  person  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself;  but 
his  failure  to  testify  may  be  considered  by  the  court  and 
jury,  and  may  be  the  subject  of  comment  by  counsel. 

Religious  Belief 
No  one  is  rendered  incompetent  to  be  a  witness  on  account 
of  religious  belief;  nevertheless,  every  one  offered  as  a 
witness  in  a  court  must  take  an  oath  or  affirmation. 


596  APPENDIX 


A  person  may  be  sworn  as  a  witness  if  he  believes  in  the 
existence  of  a  Supreme  Being,  who  will,  either  in  this  life 
or  the  life  to  come,  inflict  punishment  for  false  swearing. 
An  examination  into  his  religious  belief  may  be  made 
for  the  purpose  of  affecting  his  credibility. 

Privileged  Communications 

A  clergyman  or  priest  may  not  testify  as  to  a  confession  made 
to  him  in  his  professional  character,  in  the  course  of  dis- 
cipline enjoined  by  the  church  to  which  he  belongs. 

A  physician  may  not  testify  as  to  a  communication  made  to 
him  by  his  patient  in  that  relation,  or  his  advice  to  his 
patient,  except  by  express  consent  of  patient,  or  when 
patient  voluntarily  testifies  on  the  subject. 

An  attorney  may  not  testify  as  to  a  communication  made  to 
him  by  his  client  in  that  relation,  or  his  advice  to  his 
client,  except  by  express  consent  of  client,  or  when  client 
voluntarily  testifies  on  the  subject.  This  rule  does  not 
apply  to  criminal  cases ;  and  disclosures  can  not  be  re- 
quired of  the  attorney  without  the  consent  of  the  accused. 

Husband  or  wife  may  not  durinr^  the  marital  relation  or 
afterward,  testify  concerning  communications  made  by 
one  to  the  other,  or  an  act  done  by  either  in  the  presence 
of  the  other,  during  coverture,  unless  made  or  done  in  the 
known  presence  or  hearing  of  a  competent  third  person, 
although  such  person  is  not  living  at  the  time  of  trial. 

In  criminal   cases,   the  foregoing  is  the   general  rule  unless: 

(1)  in  case  of  personal  injury  by  one  to  the  other,  or 

(2)  in  case  of  failure  to  provide  for,  or  the  neglect  or 
the  cruelty  of  either  to-  their  children  under  sixteen. 

But  the  presence  or  whereabouts  of  either  shall  not  be  an  act. 

Husband  and  wife  are  competent  to  testify  in  behalf  of  each 
other  in  all  criminal  prosecutions;  and  to  testify  against 
each  other  in  case  of  failure  to  provide  for,  n^^'lect  of, 
or  cruelty  to.  their  child  under  sixteen.  Such  rplationship 
may  be  shown  for  the  purpose  of  affecting  credibility. 

The  parties  in  an  action  for  divorce  or  alimony,  are  competent 
to  testify  to  the  same  extent  that  any  other  witness  might. 

Competency  of  Party 
A  party  shall  not  testify  when  the  adverse  party  is  the  guardian 
or  trustee  of  either  a  deaf  and  dumb  or  an  insane  person, 


AN    OUTLINE    OF    EVIDENCE  597 

or  of  a  child  of  a  deceased  person  or  is  an  executor  or 
administrator,  or  claims  or  defends  as  heir,  oi'antee,  as- 
signee, devisee,  or  legatee  of  a  deceased  person. 

The  party  designed 'to  be  excluded  from  testifying  by  this 
section  must  be  a  real  and  not  a  mere  formal  and  unneces- 
sary party.  Both  the  party  disqualified  and  the  adverse 
party  referred  to  must  be  parties  to  the  record,  and  ad- 
versely interested  in  the  determination  of  the  issues  of 
fact. 

A  person,  who,  if  a  party,  would  be  restricted  in  his  evidence 
under  the  foregoing  rule,  shall,  where  the  property  is  sold 
or  transferred  by  the  trustee  or  successor  of  the  deceased, 
be  restricted  in  the  same  manner. 

A  person  who  assigns  his  claim  or  interest  shall  not  testify 
concerning  any  matter  in  respect  to  which  he  would  not, 
if  a  party,  be  permitted  to  testify. 

Exceptions.     A  party  may  testify — 

(1)  To  facts  occurring  subsequent  to  appointment  of 
trustee,  or  to  death  of  predecessor  in  interest ;  or 

(2)  To  contract  made  with  an  agent,  when  the  agent 
is  competent  to  testify ;  or 

(3)  Where  a  party  or  one  having  a  direct  interest 
testifies  to  transactions  or  conversations  with  an- 
other party,  the  latter  may  testify  as  to  the  same ; 
or 

(4)  Where  a  party  offers  evidence  of  [oral]  eonversa- 
sations  or  admissions  of  the  opposite  party,  the 
latter  may  testify  concerning  the  same  conversa- 
tions or  admissions ;  or 

(5)  To  transactions  with  a  partner  or  joint  contrac- 
tor since  deceased,  when  made  in  the  presence 
of  the  surviving  partner  or  joint  contractor;  or 

(6)  When  the  claim  or  defense  is  founded  on  a  book 
account ;  or 

(7)  Where  a  party,  after  testifying  orally,  dies,  and 
the  evidence  is  proved  by  their  party  on  a  further 
trial  of  the  case ;  or 

(8)  Where  a  party  dies  and  his  deposition  is  offered 
in  evidence  :  or 

(9)  In  aetions  for  r-nusing  death  ;  rr 


r;9S  APPENDIX 

(10)  In  actions  or  proceedings  involving  the  validity 

of  a  deed,  will  or  codicil. 

And  when  a  case  is  plainly  within  the  reason  and  spirit  of 

the  next  three  preceding  sections    (11493  to   11495   of  the 

General  Code),  though  not  within  the  strict  letter,  their 

principles  are  to  be  applied. 

At  the  instance  of  the  adverse  party,  a  party  may  be  examined 
as  if  under  cross-examination  either  orally  or  by  deposi- 
tion, like  any  other  witness.  If  the  party  be  a  corporation, 
any  or  all  the  officers  thereof  may  be  so  examined  at  the 
instance  of  the  adverse  party.  The  party  calling  for  such 
examination  shall  not  thereby  be  concluded  but  may  rebut 
it  by  counter-testimony. 

Modes  of  Taking  Testimony 

The  testimony  of  witnesses  may  be  taken  (1)  by  affidavit; 
(2)  by  deposition,  or  (3)  by  oral  examination. 

An  affidavit  is  a  written  declaration  under  oath  made  without 
notice  to  the  adverse  party;  a  deposition  is  a  written 
declaration  under  oath,  made  upon  notice  to  the  adverse 
party;  and  oral  evidence  is  that  delivered  from  the  lips 
of  the  witness. 

An  affidavit  may  be  used  to  verify  a  pleading,  to  prove  the 
service   of  the   summons,  notice,   or   other  process  in  an 
action ;  or  to  obtain  a  provisional  remedy,  an  examination 
of  a  witness,  a  stay  of  proceedings,  or  upon  motion,  and  ' 
in  any  other  case  permitted  by  law. 

A  deposition  may  be  taken  at  any  time  after  service  of  sum- 
mons ;  and  the  deposition  of  any  witness,  whether  a  party 
to  the  action  or  not,  may  be  so  taken. 

Testimony  taken  by  a  referee  or  master  in  regular  form,  may 
be  used  as  a  deposition. 

A  deposition  may  be  read  in  any  stage  of  the  action  or  pro- 
ceeding or  in  any  other  action  or  proceeding  upon  the 
same  matter  between  the  same  parties,  subject,  however, 
to  such  exceptions  as  are  taken  thereto  under  the  provi- 
sions of  the  statutes. 

A  deposition  may  be  used  in  any  civil  action  or  proceeding: 
(1)    when   the   witness    does   not   reside   in,    or   is   absent 


AN    OUTLINE    OF    EVIDENCE  599 

from,  the  county;  (2)  when  the  witness  is  dead,  or  from 
age,  infirmit}'  or  imprisonment  is  unable  to  attend  court; 
(3)  when  the  testimony  is  required  on  a  motion;  or  (4) 
when  oral  examination  of  the  Avitness  is  not  required. 
In  criminal  cases,  the  court  may  grant  a  commission  to  take 
the  deposition  of  a  material  witness  for  either  side  (1) 
when  he  resides  out  of  the  state,  or  (2)  residing  mthin 
the  state,  is  sick  or  infirm  or  about  to  leave  the  state  or  is 
confined  in  prison. 

Number  of  Witnesses 

The  general  rule  is  that  the  testimony  of  one  credible  witness 
is  sufficient  to  prove  any  fact,  except  in  cases  of  treason, 
insurrection,  perjury,  seduction,  divorce  and  alimony. 

In  prosecutions  for  treason,  misprision  of  treason,  or  insurrec- 
tion, the  law  requires  two  credible  witnesses  to  the  same 
overt  act. 

In  actions  for  seduction  (see  G.  C.  Sec.  13671)  and  for  perjury, 
the  evidence  of  one  witness  must  be  supported  by  other 
evidence. 

A  divorce  or  a  judgment  for  alimony  will  not  be  granted  upon 
the  testimony  or  admissions  of  a  party  unsupported  by 
other  evidence. 

The  testimony  of  an  accomplice  should  also  be  corroborated 
by  other  evidence  or  circumstances  rather  than  convict 
upon  his  unsupported  testimony.  This  applies  only  to  an 
accomplice  who  testifies  for  the  prosecution. 

Separation  of  Witnesses 
It  is  a  good  practice  to  have  the  witnesses  examined  separately. 
Where  the  witnesses  in  a  cause  have  been  ordered  by 
the  court  at  the  request  of  a  party  to  withdraw,  and  one 
of  them  remains  in  violation  of  the  order  and  hears  the 
testimony  of  the  other  witnesses,  it  rests  in  the  discretion 
of  the  court  whether  he  shall  afterwards  be  permitted  to 
testify  in  the  case.  He  may  be  excluded ;  but  disobedience 
is  usually  punished  as  a  contempt. 

Limitation  of  Number 
The  court  in  its  discretion  may  impose  reasonable  limits  upon 
the  introduction  of  cumulative  evidence. 


600  APPENDIX 

Evidence  is  cumulative  which  merely  multiplies  witnesses  to 
such  facts  as  have  already  been  investigated,  or  only  adds 
other  circumstances  of  the  same  g'^eneral  character. 

A  reasonable  limitation  of  the  number  of  witnesses  that  may 
be  called  in  proof  of  a  fact,  or  of  a  single  issue,  is  within, 
the  disctetion  of  the  trial-court. 

Former  Testimony 

Testimony  at  a  former  trial,  of  a  deceased  witness,  and  of 
witnesses  beyond  the  jurisdiction  of  the  court,  insane,  etc., 
may  be  introduced  in  certain  cases : 

A  bill  of  exceptions  certified  by  the  trial-judge  may 
be  read  in  evidence  by  either  party  on  a  further 
trial  of  the  case. 
When  no  bill  of  exceptions  was  taken,  the  evidence 
taken  by  an  official  stenographer  may  be  read  in 
evidence  by  either  party  on  a  further  trial  of  the 
case  as  prima  facie  evidence. 
If  no  stenographic  notes  were  taken,  the  evidence  may 
be  proved  by  witnesses  who  were  present  at  the 
former  trial. 
Testimony  so  offered  shall  be  open  to  all  objections. 
(See  G.  C.  Sec.  11496.) 
The  foregoing  section  does  not  apply  to  criminal  cases  (66  0. 
S.  407,  419).    See  Summons  v.  State,  5  0.  S.  325. 

Facts  Provable 

All  facts  necessary  to  be  proved  in  any  case  may  be  proved 
by  oral  evidence,  except — 

(1)  Those  facts  of  which  a  public  record  is  required 
to  be  kept ;  and 

(2)  ThosQ  matters  which  are  required  to  be  reduced 
to  writing ;  and 

(3)  The  terms  of  any  agreement  which  has  been  re- 
duced to  writing. 

However,  this  rule  does  not  forbid  the  use  of  secondary  evi- 
dence in  a  proper  case  to  prove  the  contents  of  a  writing; 
and  it  is  not  a  violation  of  the  statute  of  frauds. 


AN    OUTLINE    OF    EVIDENCE  601 

Direct-Examination 

Direct-examination.  (By  party  calling  the  witness.)  Leading 
questions,  those  that  suggest  the  answer  desired,  are  not 
allowed  except  to  bring  out  introductory  matter,  or  where 
party's  witness  appears  hostile  or  unwilling,  or  when  he 
omits  a  fact  from  want  of  recollection. 

Leading  questions  may  be  put  to  a  witness  called  to  contra- 
dict that  certain  things  Avere  said. 

But  leading  questions  are  improper  when  a  witness  is  being 
impeached  by  showing  contradictory  statements. 

When  a  witness  makes  a  statement  on  direct  examination, 
the  narration  of  an  independent  circumstance  to  fortify 
his  own  statement  is  improper  and  should  be  excluded. 
A  witness  may  fortify  his  statement  only  when  his  recol- 
lection is  tested  on  cross-examination. 

A  witness  may  refresh  his  memory  from  a  writing  made  at 
or  near  the  time  when  the  act  or  transaction  happened, 
when  he,  by  referring  to  the  writing,  is  enabled  to  actually 
recollect  the  facts. 

Cross-Examination 

Cross-examination.  (By  adverse  party.)  This  term  imports 
a  leading  and  searching  inquiry  of  the  witness  for  further 
disclosures;  it  has  become  an  important  test  of  credibility. 

It  is  limited  to  facts  stated  in  the  direct,  and  connected  there- 
with, and  may  be  extended  to  whatever  the  party  calling 
the  witness  is  required  to  prove. 

But  a  party  should  not  introduce  his  own  case  when  cross- 
examining  the  witnesses  of  his  adversarj'-.  A  defendant 
has  no  right  to  go  into  the  distinct  matter  of  his  defense 
before  the  plaintifiP  has  rested. 

The  denial  of  the  right  to  a  fair  and  proper  cross-examination 
is  reversible  error,  thongh  the  cross-examiner  does  not 
disclose  the  answers  which  he  expects  to  elicit. 

Disparaging-  Questions 

A  witness  may  be  asked  on  cross-examination  any  question 
which  tends  to  test  his  accuracy  or  credibility,  or  to  im- 
pair his  frf'dit,  by  showing  his  bad  character. 


g02  APPENDIX 

A  witness  may  be  interrogated  on  cross-examination  concern- 
ing facts  which  affect  his  credibility  by  showing  bias  in 
favor  of  the  party  who  called  him  as  a  witness,  or  by  show- 
ing prejudice  against  the  adverse  party. 

The. criminal  record  of  a  witness  may  be  shown  on  cross-ex- 
amination to  affect  credibility.  And  his  reputation  for 
truth  may  be  proved  to  rebut  the  imputation. 

The  court  may  prohibit  an  oppressive  or  unreasonable  cross- 
examination  on  these  and  other  collateral  facts.  The 
limits  of  such  cross-examinations  rest  in  the  sound  dis- 
cretion of  the  court. 

When  such  questions  are  collateral  and  immaterial,  and  rele- 
vant only  to  test  credibility,  the  answers  can  not  be  con- 
tradicted, except — 

(1)  When  he  is  asked  if  he  has  been  convicted  of  an 
infamous  crime,  and  he  does  not  admit  it,  and 

(2)  When  he  is  questioned  with  a  view  of  showing 
bias,  interest,  or  enmity  toward  the  party,  and 
he  denies  it. 

Privilege  Against  Incrimination 

And  a  witness  may  refuse  to  answer  and  will  not  be  punished 
for  contempt,  when  the  answer  will  tend  to  incriminate 
him ;  but  the  witness  is  not  the  judge  of  the  effect  of  an 
answer. 

Impeachment  of  Witnesses 

A  party  may  not  impeach  his  own  witness ;  but  a  witness  may- 
be impeached  by  the  adverse  party  in  two  ways : 

(1)  By  proof  that  his  general  reputation  for  truth 
is  such  as  to  render  him  unworthy  of  belief,  but 
not  by  proof  of  specific  acts. 

(2)  By  proof  of  prior  contradictory  statements  made 
outside  of  court.  The  time  and  place  must  be 
stated,  and  the  person  present  named,  and  the 
witness  must  first  be  given  an  opportunity  to 
explain,  affirm,  or  deny.  The  statements  must 
not  be  collateral  and  immaterial  to  the  issue. 


AN    OUTLINE    OF    EVIDENCE  603 

A  witness  mar  be  rehabilitated — 

By  explaining  away  discrediting  facts;  and 
When  character  is  attacked,  by  evidence  of  good  char- 
acter. 
When  impeachment  is  by  evidence  of  prior  incon- 
sistent statements,  the  witness  may  be  reha- 
bilated  by  proof  that  the  alleged  inconsistent 
statements  never  were  made ;  but  not  by  showing 
that  prior  consistent  statements  were  made. 

Re-Direct  Examination 

This  is  ordinarily  limited  to  new  matter  brought  out  on  cross- 
examination  and  to  explanations.  A  witness  can  not  be 
examined  concerning  new  matter  not  referred  to  in  the 
cross-examination,  as  to  which  he  might  have  been  exam- 
ined in  chief.  Any  relaxation  of  the  rule  is  but  an  exer- 
cise of  discretion  and  not  reviewable. 

After  examination  of  a  witness  by  both  sides  is  once  concluded, 
he  may  not  be  recalled  without  leave  of  court.  It  is  com- 
mon practice  for  counsel,  and  permitted  by  the  courts,  to 
recall  witnesses  at  almost  any  stage  of  the  case,  for  the 
purpose  of  cross-examination,  particularly  where  it  is 
desired  to  contradict  a  statement  of  the  witness. 

Facts  and  Opinions 

The  general  rule  is  that  a  witness  may  only  testify  to  those 
facts  which  he  knows  of  his  own  knowledge — those  which 
are  derived  through  his  own  senses  or  perceptions — and 
not  to  inferences  or  conclusions. 

A  witness  may  state  his  impression.  A  witness  can  not  be 
required  to  depose  positively,  when  his  recollection  is  not 
distinct  and  certain.  But  the  impression  of  a  witness,  to 
be  admi.ssible  as  evidence,  must  not  be  the  result  of  a 
process  of  reason  and  judgment. 

Opinions  of  Non-Experts 
In   matters   within   the   common   observation   and   experience 
of  men,  non-exports  may,  in  cases  where  it  is  not  prac- 
ticable to  place  before  the  jury  all  the  primary  facts  upon 


504  APPENDIX 

which  they  are  founded,  state  their  opinion  from  such 
facts,  where  such  opinions  involve  conclusions  material 
to  the  subject  of  inquiry.  In  such  cases,  the  witnesses 
should  qualify  by  showing  that  they  have  some  knowledge 
on  the  subject,  and  should,  so  far  as  may  be,  state  the 
primary"  facts  which  support  their  opinions. 
But  when  the  matter  is  one  within  the  common  knowledge 
of  men  of  ordinary  information,  and  the  jury  is  just  as 
competent  as  the  witness  to  form  an  opinion  from  the 
facts  that  can  be  described,  the  jury  must  be  allowed 
to  draw  its  own  conclusions. 


Opinions  of  Experts 

And  the  opinion  of  a  witness  vrho  is  an  expert  is  received 
where  the  nature  of  the  inquiry  involves  a  question  of 
science  or  art,  of  trade  or  business,  or  of  professional  or 
mechanical  skill,  and  is  such  that  the  jurors  are  incom- 
petent to  draAv  their  own  conclusions  from  the  facts,  with- 
out the  aid  of  persons  whose  skill  or  knowledge  is  superior 
to  their  own. 

The  witness  should  first  qualify  as  an  expert  by  stating  his 
means  of  knowledge  which  enables  him  to  form  a  correct 
opinion ;  and  it  is  for  the  court,  in  its  discretion,  to  decide 
whether  the  witness  is  a  competent  expert. 

It  is  proper  on  the  examination  of  an  expert,  even  on  his 
examination  in  chief,  to  require  him  to  state  the  reasons 
for  his  opinion. 

The  opinion  of  an  expert  may  be  based  upon  facts  within  his 
personal  knowledge,  or  upon  facts  stated  to  him  hypo- 
thetieally  while  on  the  stand. 

In  the  latter  case,  the  question  must  be  based  on  facts  wliich 
the  evidence  tends  to  prove.  However,  in  cross-examining 
an  expert  witness,  questions  may  be  put  Avhich  are  based 
upon  some  other  hypothesis  which  the  cross-examiner 
hopes  to  establish  by  evidence. 

Full  latitude  should  be  allowed  in  the  cross-examination  of 
opinion  witnesses  in  order  to  ascertain  the  basis,  and  test 
the  soundness,  of  their  opinions. 


AN    OUTLINE    OF    EVIDENCE  605 

Opinions  on  the  precise  issue  of  fact  which  the  juiy  is  sworn 
to  determine  are  incompetent.  Witnesses  may  testify  as 
to  facts  of  such  evidential  value  as  would  assist  the  jury 
in  arriving  at  its  conclusions  upon  the  determinative  ques- 
tions of  the  case. 

It  is  proper  to  admit  the  testimony  of  experts  as  to  the  hand- 
Avriting  of  a  disputed  paper  by  comparing  it  with  other 
papers  proved  to  have  been  w^ritten  by  the  person  claimed 
to  be  the  writer  of  the  disputed  paper,  although  such 
experts  have  no  previous  knowledge  of  the  handwriting 
of  the  party. 

A  non-expert  must  qualify  by  showing  an  acquaintance  with 
the  handwriting. 

A  medical  expert  may  give  his  opinion  on  questions  of  mental 
capacity  and  physical  condition;  and  a  non-expert  may 
do  the  same  to  a  very  limited  extent. 

Opinion  evidence  is  also  received  when  it  is  material  to  know: 

(1)  The  value  of,  or  damage  to,  property; 

(2)  The  value  of  professional  or  domestic  services; 

(3)  The  chemical  analysis  of  anything,  such  as  water 
or  blood; 

(4)  The  mode  of  construction  or  operation  of  machin- 
ery or  appliances ; 

(5)  The  rate  of  speed  of  trains  or  automobiles;  or 

(6)  The  disposition  and  habits  of  animals. 

PRIVATE  WRITINGS 

Primary  Evidence 

It  is  a  rule  that  a  party  offering  to  prove  any  matter  which 
is  in  writing  is  bound  to  produce  the  writing  when  it 
is  the  best  evidence  of  the  matter  sought  to  be  proved. 
The  writing  would  be  primary  evidence,  and  all  inferior 
evidence  w^ould  be  secondary. 

The  purpose  of  the  rule  is  to  prevent  tlie  introduction  of 
evidence  when  the  court  is  satisfied  tliat  l)etter  evidence 
is  in  the  possession  or  under  the  control  of  the  party,  and 
he  has  not  given  a  sufficient  excuse  for  his  failure  to 
produce  it. 


606  APPENDIX 

But  where  the  fact  to  be  proved  is  collateral  to  the  writing, 
oral  evidence  may  be  admitted.  The  existence  and  trans- 
fer of  a  writing,  but  not  its  contents,  may  be  proved 
without  producing  it. 

And  where  a  question  in  regard  to  a  contract  does  not  call 
for  its  terms,  but  for  what  was  done  under  it,  the  evidence 
should  be  admitted. 


Secondary  Evidence 

Secondary  evidence  of  the  contents  of  a  writing  is  admissible 
when  the  absence  of  the  original  is  accounted  for  in  one 
of  the  following  ways: 

(1)  It  is  the  general  rule  that  secondary  evidence  is 
admissible  when  the  original  is  beyond  the  juris- 
diction of  the  court. 

(2)  The  results  of  an  examination  of  many  books  of 
account,  may  be  proved  by  qualified  persons  if 
the  examination  can  not  be  conveniently  made 
in  court. 

(3)  Secondary  evidence  is  admissible  when  the  origi- 
nal is  a  record  in  the  custody  of  a  public  officer; 
and 

(4)  When  the  original  is  a  record  or  a  writing,  of 
which  a  certified  copy  is  expressly  made  evidence 
by  statute ;  and  also 

(5)  When  the  original  is  of  such  a  nature  that  it  can 
not  conveniently  be  produced  in  court,  such  as 
inscriptions. 

(6)  When  the  original  of  a  writing  is  lost  and  proper 
search  has  been  made  for  it,  secondary  evidence 
is  admissible.  The  same  rule  applies  to  a  de- 
stroyed instrument;  and  the  mutilated  parts  of 
a  paper  in  evidence  may  be  proved  in  the  same 
manner. 

(7)  Secondary  evidence  will  be  admitted  when  the 
original  is  in  the  possession  of  the  adverse  party, 
and  he  fails  to  produce  the   same   after  notice. 


AN    OUTLINE    OF    EVIDENCE  607 

Notice  to  Produce 
A  notice  to  produce  a  pai)er  must  be  reasonable  and  should 

be  served  before  the  trial. 
There  are  three  well-established  exceptions  to  this  rule,  and 

in  which  notice  to  produce  is  not  necessary: 

(1)  Where  the  instrument  to  be  produced  and  that 
to  be  proved  are  duplicate  originals; 

(2)  Where  the  instrument  to  be  proved  is  itself  a 
notice,  such  as  notice  to  quit,  or  notice  of  the  dis- 
honor of  a  bill  of  exchange; 

(3)  AVhere  from  the  nature  of  the  action  the  defend- 
ant has  notice  that  the  plaintiff  intends  to  charge 
him  with  possession  of  the  instrument. 

Order  to  Produce 

The  production  of  private  writings  may  be  secured  by  a  sub- 
poena duces  tecum.  The  subpoena  may  direct  the  person 
it  names  to  bring  with  him  any  book,  writing,  or  other 
thing  under  his  control,  which  he  may  be  compelled  to 
produce  as  evidence. 

When  books  and  writings  pertinent  to  the  issue  are  in  the 
possession  or  power  of  the  parties — 

(1)  The  court  may,  on  motion  and  reasonable  notice, 
order  the  parties  to  produce  them,  if  material 
and  necessary  to  the  case  of  the  one  filing  the 
motion ;   or 

(2)  Demand  may  be  made  of  the  adverse  party  for 
an  inspection  and  copy  of  a  book,  paper,  or  docu- 
ment containing  evidence  in  the  action  or  de- 
fense, with  which  the  adverse  party  must  comply 
within  four  days ; 

(3)  If  the  party  in  possession  alleges  that  the  Avriting, 
or  a  part  thereof,  is  of  mere  private  interest,  or 
is  of  such  nature  that  neither  of  above  demands 
should  be  allowed,  the  court  may,  on  motion  of 
either  party,  direct  a  private  examination  by  a 
master. 

A  party  may  be  required  to  deliver  to  the  other  party  a  copy 
of  an  instrument  which  he  intends  to  offer  in  evidence, 
or  of  any  whereon  the  action  or  defense  is  founded,  ex- 
cept one  filed  with  a  pleading  as  recpiired  by  law. 


608  APPENDIX 

Proof  of  Execution 

Execution  of  a  private  writing  must  first  be  proved,  if  not 
admitted. 

Before  trial,  a  party  may  exhibit  to  the  adverse  party  any 
writing  material  to  the  action  and  request  a  written  ad- 
mission of  its  genuineness ;  and  if  he  fails  to  give  it  within 
four  days,  cost  of  proof  may  be  taxed  against  him. 

When  the  adverse  parly  denies  execution  of  an  attested  writ- 
ing, other  than  a  will,  the  following  is  the  best  evidence : 
The  testimony  of  the  signer  of  the  instrument ;  or 
The  testimony  of  at  least  one  of  the  witnesses ;  or 
When  acknowledged,  the  testimony  of  the  certifying 
officer. 
When  the  adverse  party  denies  execution  of  an  unattested 
writing,  the  following  is  the  best  evidence: 

The  testimony  of  the  signer  of  the  instrument;  or 
The  testimony'  of  a  person  who  saw  the  writing  exe- 
cuted. 
In  the  case  of  both  attested  and  unattested  writings, 
the  evidence  of  the  handwriting  and  any  other 
relevant  evidence  would  be  secondary. 

If  execution  of  the  instrument  is  not  directly  in  issue,  but 
comes  incidentally  in  question,  its  execution  may  be  proved 
by  any  competent  evidence  without  calling  the  subscrib- 
ing witnesses. 

No  other  evidence  of  execution  need  be  given — ■ 

If  the  adverse  party  has  admitted  its  execution;  or 
If  it  is  produced  from  his  custody  and  recognized  by 

him  as  genuine ;  or 
If  it  is  more  than  thirty  years  old,  and  is  produced 

from  the  proper  custody,  that  is,  the  place  where 

papers  of  its  kind  are  usually  deposited ;  or 
When  the  original  is  recorded  pursuant  to  law,  and 

a  certified  copy  is  expressly  made  evidence  by 

statute. 


AN    OUTLINE    OF    EVIDENCE  609 

Statute  of  Frauds 
In  regard   to   agreements  within   the  statute   of  frauds,   the 
following  rules  should  be  kept  in  mind: 

(1)  They  should  contain  the  essential  terms  of  the 
agreement. 

(2)  They  must  be  signed  by  one  of  the  parties  to  be 
charged  and  may  be  accepted  by  the  other  party. 

(3)  The  form  is  not  material ;  it  may  even  be  a  letter, 
or  it  may  be  contained  in  a  number  of  writings. 

(4)  The  statute  does  not  forbid  the  use  of  secondary 
evidence.  When  the  ground  is  laid  for  it,  the 
contents  of  the  writing  may  be  sho^vn  by  oral 
evidence ;  but  an  oral  agreement  may  not  be 
shown. 

Account  Books 

The  general  common-law  rule  requires  that  the  entries  shall 
be  contemporaneous  with  the  facts  to  which  they  relate, 
and  shall  be  made  by  parties  having  personal  knowledge 
of  the  facts,  and  be  corroborated  by  their  testimony,  if 
living  and  accessible,  or  by  proof  of  their  handwriting  if 
dead,  or  insane,  or  beyond  the  reach  of  the  process  or 
commission  of  the  court. 

If  the  claim  or  defense  is  founded  on  a  book-account,  the 
party's  book-account  is  competent  evidence  against  the 
debtor,  or  his  legal  representative,  when  it  is  testified  by 
the  party,  or  by  any  competent  witness,  that  the  book  is 
the  account-book  of  the  party,  that  it  is  a  book  of  original 
entries,  that  the  entries  therein  were  made  by  himself, 
or  by  a  person  since  deceased,  or  by  a  disinterested  person 
not  a  resident  of  the  county. 

The  book  of  original  entries  must  be  produced.  A  book- 
account  should  be  proved  by  the  day-book.  However, 
the  ledger  is  competent  evidence  of  an  account  when  the 
day-book  has  been  destroyed  or  lost,  and  it  is  shown  that 
the  entries  in  the  day-book  were  correctly  transcribed  to 
the  ledger. 

Money  is  not  the  proper  subject  of  book-account,  especially 
sums  of  considerable  amount;  though  small  sums  passing 
between  the  parties  in  the  course  of  business  may  be 
charged  on  account. 


glO  APPENDIX 

Sales  slips  may  be  admitted  as  original  entries  made  in  the 
usual  course  of  business.  They  are  admissible  when  they 
are  posted  by  carrying  forward  the  total  from  one  slip 
to  another,  and  no  other  account  is  kept  of  the  trans- 
actions. 

PUBLIC  WRITINGS 

Foreign  judicial  records  are  proved  by  the  attestation  of  the 
clerk  and  the  seal  of  the  court  annexed,  together  with  a 
certificate  of  the  judge  that  the  said  attestation  is  in  due 
form. 

The  acts  of  the  legislature  of  any  state  or  territory,  or  of  any 
country  subject  to  the  jurisdiction  of  the  United  States, 
shall  be  authenticated  by  having  the  seals  of  such  state, 
territory,  or  country  affixed  thereto. 

Official  publications  of  foreign  statutory  law  are  admitted  as 
presumptive  evidence  of  such  law.  Foreign  common  law 
may  be  proved  as  facts  by  parol  evidence ;  and  the  re- 
ported decisions  may  also  be  admitted  as  presumptive 
evidence. 

The  session  laws  published  b}^  this  state  are  prima  facie  evi- 
dence of  the  correctness  and  authenticity  of  the  laws  as 
therein  printed.  The  original  enrolled  act  is  the  best 
evidence. 

The  printed  copies  of  the  by-laws  or  ordinances  of  a  corpora- 
tion, published  under  its  authority,  and  transcripts  certi- 
fied by  its  clerk,  shall  be  received  in  evidence  the  same 
as  originals. 

Copies  of  papers,  books  and  records  on  file  or  deposited  by 
virtue  of  law  in  most  executive  and  county  offices  of  this 
state,  when  properly  certified,  are  competent  evidence  and 
have  like  force  and  effect  as  the  originals. 

In  proving  a  judicial  record,  as  where  the  defense  of  former 
conviction  or  res  judicata  is  interposed,  it  is  proper  to 
admit  the  record  of  the  former  trial  or  a  certified  tran- 
script thereof. 

Where  no  complete  record  has  been  made,  the  journal  and 
docket  entries,  and  all  the  files  and  papers  properly  con- 
nected with  a  case,  are  admissible  in  evidence. 


AN    OUTLINE    OF    EVIDENCE  Ql^ 

And  if  the  original  papers  are  lost,  parol  evidence  may  be 
admitted;  but  an  abstract  thereof  is  not  competent  with- 
out proof  of  its  correctness. 

Original  papers  are  received  as  evidence  of  their  contents ; 
but  they  must  be  shown  to  be  originals.  Exemplified 
copies  under  seal  are  also  admissible. 

A  copy  of  the  record  of  instruments  of  writing  duly  certified 
by  the  county  recorder  are  received  as  prima  facie  evi- 
dence of  the  existence  of  such  instrument,  and  as  conclu- 
sive evidence  of  the  existence  of  such  record. 

A  transcript  or  certified  copy  is  not  competent  evidence  of 
facts  not  required  by  statute  to  be  recorded.  And  mat- 
ters not  required  to  be  of  record  may  be  proved  by  oral 
evidence. 

Courts  will  not  compel  the  production  of  the  original  records 
of  any  public  officer;  but  when  produced,  courts  never  re- 
ject them  as  secondary.  Originals  are  good  evidence  when 
copies  would  be  admitted.  "When  originals  are  offered, 
they  must  be  identified. 

"Where  part  of  a  writing  is  proved  by  one  party,  the  other 
party  may  introduce  all  other  parts  which  explain,  qualify 
or  rebut  the  statements  proved  by  the  part  of  the  writing 
first  introduced. 

A  duly  enrolled  bill  may  be  impeached  by  the  journals  by 
showing  that  it  had  not  received  a  constitutional  majority. 

A  road  record  may  be  impeached  by  showing  that  no  notice 
had  been  given,  and  that  the  petition  was  not  signed  by 
the  number  of  freeholders  required  by  statute. 

The  minutes  of  a  taxing  board  are  not  conclusive,  and  the 
real  facts  may  be  shown  by  parol  unless  otherwise  pro- 
vided by  statute.  And  parol  evidence  will  be  received 
to  correct  errors  on  the  duplicate. 

Records  of  elections,  certificates  and  ballots  may  be  impeached 
for  fraud.  Mistakes  may  be  corrected  and  omissions  sup- 
plied by  oral  evidence. 

A  regular  statutory  certificate  of  acknowledgment  of  a  mort- 
gage may  be  impeached  for  fraud.  A  grantor  may,  even 
as  against  an  innocent  party,  show  that  he  never  signed 
or  acknowledged  the  mortgage. 


Q12  APPENDIX 

The  legal  effect  of  a  judgment  can  not  be  varied  by  evidence 
of  extrinsic  facts  occurring  before  its  rendition. 

If  the  language  imports  that  the  notice  required  by  law  had 
been  regularly  given,  evidence  will  not  be  received  to  con- 
tradict it. 

However,  when  a  judgment  is  made  the  foundation  of  an 
action,  it  can  be  shown  that  the  defendant  was  not  served 
with  process,  though  it  be  in  contradiction  of  the  record. 

The  court  has  power  to  correct  not  only  clerical  errors,  but 
also  such  errors  as  may  arise  from  any  fraudulent  or 
improper  alteration  of  its  files  or  records,  and  also  to 
enter  judgment  nunc  pro  tunc.  And  in  order  to  make 
such  correction,  the  court  may  hear  evidence  and  act  on 
the  proof. 

And  an  ambiguous  entry  may  be  explained  by  parol  evidence. 
And  such  evidence  is  admissible  to  identify  the  parties. 

The  testimony  of  jurors  will  not  be  received  to  impeach  their 
verdict  by  showing  misconduct  of  other  jurors  in  the 
jury-room  until  such  misconduct  is  shown  aliunde. 

Affidavits  of  jurors  stating  that  they  misunderstood  the  charge, 
or  that  the  jury  adopted  the  average  method  of  arriving 
at  the  amount  of  their  verdict,  or  determined  the  degree 
of  homicide  by  lot,  will  not  be  received  on  motion  to  set 
aside  the  verdict. 

PAROL  EVIDENCE 

General  Rule 

Parol  evidence  is  not  admissible  to  contradict  or  vary  the 
plain  terms  of  a  written  agreement  or  the  contract  implied 
from  the  instrument. 

The  rule  applies  only  to  controversies  between  the  parties  to 
the  instrument  and  their  privies.  Strangers  to  the  instru- 
ment are  not  bound  by  the  rule. 

Whenever  a  right  is  vested,  or  created,  or  extinguished  by 
written  contract,  parol  evidence  is  not  admissible  to  alter 
or  contradict  the  legal  and  common-sense  construction  of 
the  instrument. 


AN    OUTLINE    OF    EVIDENCE  613 

A  release  can  uot  be  contradicted  or  explained  by  parol  evi- 
dence because  it  extinguishes  a  pre-existing  right.  But 
no  receipt  can  have  the  effect  of  destro^'ing  any  subsisting 
right.  It  is  only  evidence  of  a  fact.  A  receipt  for  prop- 
erty or  money  may  be  explained  by  parol  evidence. 

A  deed  can  not  be  varied  by  parol  in  so  far  as  it  is  intended 
to  pass  a  riglit.  The  consideration  clause  of  a  deed  can 
not  be  contradicted  so  as  to  affect  in  any  way  the  purpose 
of  the  deed,  that  is,  its  operation  as  a  conveyance.  This 
rule  prevents  the  use  of  parol  evidence  to  change  a  deed 
of  purchase  to  a  deed  of  gift. 

Exceptions 

The   principal   exceptions   may   be  briefl}-   stated  as   follows : 

Fraud    and    Mistake ;    Conditional    Delivery ;  Subsequent 

Contract ;   Incomplete   Writing   and   Custom ;  Ambiguity ; 

Surrounding    Circumstances;    Relation    and  Identity    of 

Parties;  and  the  Subject-matter.     These  will  be  outlined 
in  the  order  named. 

Oral  or  extrinsic  evidence  is  admissible  to  show  the  existence 
of  fraud,  duress,  illegality,  mistake,  or  want  of  capacity. 
In  an  action  for  fraud  or  mistake,  the  acts  done,  or  pro- 
cured to  be  done  by  the  parties,  and  which  tend  to  prove 
the  fraud  or  mistake,  are  admissible. 

Parol  evidence  is  admissible  in  an  action  between  the  parties 
to  show  that  a  written  instrument,  executed  and  delivered 
and  absolute  on  its  face,  was  conditional  and  was  not  to 
take  effect  until  another  event  should  take  place.  This  is 
a  condition  precedent.  The  rule  Avould  not  be  applied  in 
case  of  condition  subsequent. 

Subsequent  to  the  execution  of  a  written  contract,  it  is  com- 
petent for  the  parties  by  a  parol  contract,  founded  on 
a  new  consideration,  either  to  abandon,  Avaive  oi-  nuniil 
the  prior  contract,  or  vary  or  qualify  the  terms  of  it  in 
any  manner.     This  may  be  sliowii  l)y  j);iro]. 

The  parol  evidence  rule  does  not  apply  (1)  where  express 
reference  is  made  to  a  ])arf)l  contract  in  the  writiii-^';  or 
(2)  where  the  writing  does  not  purport  1o  lie  ;i  (•()iiii)Ii"tc 


614  APPENDIX 

expression  of  the  contract,  or  evidently  appears  to  express 
only  some  part  of  it;  or  (3)  where  the  verbal  transaction 
may  be  a  different  one,  collateral  to  the  one  in  writing. 
The  proposed  evidence  should  not  contradict  the  terms  of 
the  writing. 

An  express  trust  engrafted  on  an  absolute  deed  may  be  shown 
by  parol  evidence. 

Parol  evidence  is  admissible  to  show  that  a  deed  is  a  mort- 
gage, notwithstanding  the  deed  appears  absolute  on  its 
face. 

An  absolute  assignment  may  be  proved  by  parol  evidence  to 
have  been  given  and  accepted  as  security  for  a  debt. 

The  contract  between  principal  and  surety  is  not  necessarily 
contained  in  or  evidenced  by  the  contract  with  the  credi- 
tor, but  may  be,  and  usually  is,  collateral ;  and  it  may  be 
proved  by  any  competent  evidence. 

Parol  evidence  of  a  usage  or  custom  is  admissible  to  annex 
incidents,  as  it  is  termed ;  that  is,  to  show  what  things 
are  customarily  treated  as  incidental  to  the  principal 
thing  to  which  the  instrument  relates. 

The  law  implies  a  promise  in  conformity  with  a  usage  on  the 
subject  of  a  contract,  when  there  is  no  express  stipula- 
tion to  the  contrary. 

A  usage  or  custom  can  only  be  used  to  explain  or  aid  in  the 
interpretation  of  a  contract  or  liability  existing  independ- 
ently of  it. 

A  custom  is  not  admissible  either  to  contradict  or  alter  the 
legal  import  of  a  contract,  or  to  change  the  title  to  prop- 
erty contrary  to  law. 

A  custom  must  not  be  unjust,  unreasonable,  oppressive  or  in 
conflict  with  an  established  rule  of  public  policy. 

A  custom  should  be  long  continued  without  interruption,  so 
that  it  may  be  presumed  that  it  was  known  to  the  parties. 
But  it  may  be  of  recent  date  if  well  known. 

Only  witnesses  who  are  experienced  in  the  trade  can  testify 
to  the  custom  existing  in  that  trade ;  and  their  testimony 
is  not  to  be  given  as  a  matter  of  opinion. 

In  the  case  of  a  patent  ambiguity,  that  is.  one  appearing  on 
the  face  of  the  instrument,  a  reference  to  matters  dehors 


AN    OUTLINE    OF    EVIDENCE  615 

the  instrument  is  forbidden  as  a  general  rule.  It  must, 
if  possiljle,  be  removed  by  construction. 

But  when  an  ambiguity  arises  from  extrinsic  matters,  or  when 
the  object  or  extent  of  the  instrument  can  not  be  deter- 
mined from  the  language  used,  parol  evidenve  is  admis- 
sible to  remove  that  ambiguity  and  ascertain  the  object 
upon  which  it  was  designed  to  operate. 

An  ambiguity  arises  where  words  apply  equally  to  different 
things,  and  one  and  not  the  other  must  have  been  intended. 
It  is  not  an  ambiguity  where  by  the  language  either  was 
intended. 

Upon  a  like  principle  stands  the  case  of  a  contract  to  do  a 
thing  when  there  are  two  usual  ways  to  do  it.  The  party 
upon  whom  performance  devolves  may  adopt  either. 

Where  the  language  of  a  contract  is  of  doubtful  import,  it  is 
proper  to  ascertain  the  circumstances  which  surrounded 
the  parties,  and  the  object  intended  to  be  accomplished, 
in  order  to  give  proper  construction  to  its  words  and  to 
determine  its  legal  effect. 

The  real  meaning  intended  to  be  expressed  by  the  language 
of  a  deed  must  be  sought  for ;  and  in  case  of  doubt,  it 
may  be  read  in  the  light  of  the  circumstances  surround- 
ing the  parties  at  the  time  of  execution. 

Subsequent  transactions  under  or  in  pursuance  of  the  contract, 
or  with  the  contract  in  view,  may  be  looked  to  for  the 
purpose  of  discerning  the  interpretation  the  parties  have 
put  upon  its  doubtful  provisions. 

Evidence  may  be  introduced  tending  to  show  the  relations 
of  the  parties  just  prior  to  and  at  the  time  of  entering 
into  a  contract. 

Parol  evidence  is  sometimes  admitted  to  identify  the  parties 
to  a  written  instrument. 

Extrinsic  parol  evidence  is  admissible  to  give  effect  to  a  writ- 
ten instrument  by  applying  it  to  its  proper  subject-matter. 
To  enable  the  court  to  ascertain  the  subject-matter  \vliere 
there  is  doubt,  parol  evidence,  which  neither  alters  nor 
adds  to  it,  is  admissible. 


GENERAL  INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

A 

Abortion — 

Dying  declarations  in,  170(i). 

Facts  sliowing  absence  of  intent,  160(b). 

Facts  state  must  prove,  66(f). 

Negative  allegations,  66(f). 

Opinion  of  woman  as  to  ber  condition,  323(g). 

^Yoman   an   accomplice,   25!)  (h). 

Abstract  of  Title- 
Admission  written  on,  12(b). 

Accessory — 

Evidence  admissible  against  principal,  212(g). 

Accident — 

Causes  of,  opinion.   363(c).(d). 
.  Condition  of  tracks  at  time  of,  105  (d). 
Defective  condition  of  macbine  after,  120  (i). 
Macbine  operated  long  time  witbout,   148 (i). 
Question  of  signals.  04. 
Similar,  wben  condition  same,  131(e). 
Station  used  long  time  witbout,  148(j). 

Accomplices — 

Cross-examination  of,  full   and   liberal,   30()(d). 
Evidence  admissible  against  principal,  212(g). 
Feigned,  259(b). 
Testimony  of,  250. 

corroboration  of.  250(a). 

court  advising   jury,    250(b). 

court  aiding,   corroboration.   250(d). 

degree  of  corroboration,  250(e)    et  seq. 

feigned  accomplice,  250(b). 

in  criminal  miscarriage,  250(b). 

in  sexual  crimes,  250  (li)- 

jury  disobeying  riile,  250(c). 

witness  for  prosecution,  250  (i). 

witness  of  accused,  250(i). 


617 


618  GENERAL   INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Accord  and  Satisfaction — 

Good  as  a  defense,  when,   183(d). 

Mutual  promises  to  perform,  evidence,  183(d). 

Account — 

Allegation  of  amount  due,  5(b). 
Evidence  of  amount  due,  5(b). 
Immaterial  allegation  in,  115(e). 

Account-books — 

Account  must  be  legal,  385(c)   et  seq. 
Accounts  not  in  books,  390. 
Accounts  on  sheets  of  paper,  390 
Admissible  as  an  admission,  380(a). 
Admission  of  correctness.  3S6(e).(f),  389(a). 
Amount  due,   evidence.  5(b). 
-    As  an  admission.  170(b). 

As  an  exception  to  hearsay,  171(c). 

Between  landlord  and  tenant,  389(e). 

Cash  entered  by  agreement,  387(c). 

Cash  entries   allowed,   when,   387(c),(d). 

Common-law  rule,  384. 

Entries  contemporaneous,   384(b).    3Sfi(e). 

Entries  in  a  pass-book,  380(e). 

Entries  of  sums  of  money,  385(d),  387. 

Goods  on   wliose  credit.  388(a). 

Identified  as  original  entries.  386  (a). 

Loss  of  day-book.  3Sfi(c).(d). 

Of  creditor  to  show  jiaynient  of  wife's  debt,  389(c). 

Of  firm   after  dissolution.  380  (d). 

Of  firm   showing  fraud  of   member.  380(b). 

Of  third  party,   hearsay.    Ifi3(b). 

Of  tliird   persons  admitted,  when.  380. 

Original  entries  in,  380. 

Parol   evidence  to  vary,  388. 

Party  contradicting,  388(a). 

Party  cross-examined  as  to  mistakes.  384(d). 

Party  may  testify  to,  385(a). 

Proof  by  day-book,  386 (b). 

Proof  by  ledger,  when,  386(c). 

Proof  of  handwriting,  384(b). 

Sales  slips  admissible,  when,  300(b). 

Secondary  evidence  of,  367(b),  368. 

Showing  bad  reputation  of,  384(d). 

Special  contract,  dealings  on  account,  387(e),(f). 

Statutorv  rule,  385. 


GENERAL    INDEX  619 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Account-books — Continued. 

Stub  of  check-book  as  account,  387(g). 
To  show  fraud  in  transaction,  217(b). 
Verified  by  witness,  3S4(c). 
Witness  called  by   adverse  party,  384(c). 

Accused — 

As  a  witness,  privilefjed  communications,  268(f). 
Attempting  to  bribe  an  officer,  128(i). 
Attempt  to  poison  another,  133(c). 
Attempt  to  shoot  another,  133(b). 
Brother  of,  oflFering  to  compound  crime.  128(1). 
Burden  to  show  exculpatory  facts,  80(b). 
Burden  to  show  facts  exempting,  80(a). 
Character  of,  140(b). 
Character  of  deceased,  141(f). 
Commission  of  other  offenses.  133  fa). 
Conduct  of,  remoteness,  130(e). 
Cross-examination,   300a. 

as  to  a  different  story,  300(b). 
to  show  familiarity  with  firearms,  300(c). 
Declarations  of  otliers.  200. 
Defense  of  "not  guilty,"  78  (a). 
Denying  intent,  effect  of,  78(b). 
Failed  to  pay  other  debts.  133(d). 

Failure  to  testify,  264(c),(d). 

Flight  of,  128(g). 

Guilty  of  other  fires,  133(g). 

Guilty  of  other  rapes.   133(h). 

Indicted    for  other  offenses,    133(f). 

Introduces  subject  of  character,  140(c). 

Made  prior  illegal  sales,  133(e). 

:Must  prove  defenses,  when,  S0(b). 

Occupation  of,  140(c). 

Opinion   of  wife  as  to  guilt,   130(k). 

Papers  on  desk  at  time  of  arrest,  264(h). 

Physical   examination  of,  249(h). 

Presence  of,  at  view,  247(c). 

Recognition  of,  corroboration,  200(g). 

Refused  to  make  other  sales,   133  (o). 

Resisting  arrest,  128(g). 

Talking  ahotit  way  to  kill,  128(f). 

Threats  of,  against  prosecutor,  128 (m). 

Witness  against  himself,  error,  264(c),(g). 

Witness  at  his  own  request.  264(c),(c). 


620  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Action — 

Length  of  time  as  a  bar  to,  44(e). 

Acts — 

Of  conspirators,   213. 

Of  party,  presumption,  40(e),(f). 

Acts  (Legislative) — 

Enrolled   bill   conclusive,   393(h). 
How  proved,  303. 
Impeachment  of,  393(e)    et  seq. 
Read  three  times,  393(c). 

Administrator — 

Admission   of,   as  to  claim,   206(c). 
Admits  capacity,  when,   181  (m). 
Presumption   of  payment  by,  38(d). 

Admissibility— 

(See  Evidence.) 

Decided  by  court,  90(j). 

Preliminary   proof,   jury,  90 (k). 

Admissions — 

(See  Judicial  Admissiotis.) 

Account-book  as,   179(b). 

Amount  of  insurance,  value,  178(f). 

As  hearsay,  16.5(a). 

As  to  former  marriage,  178  (m). 

Attempt  to  prove  alibi  not  an,  127(g). 

By  acquiescence — 

administrator  admits  capacity,  181  (m). 

by  accused  and  accomplice,  181(g). 

by  accused  after  in  custody,   181(h),(i). 

by  accused  to  third  persons,   181(f). 

explanation  of  silence,  182(g). 

failure  to  speak,  181(c). 

general  rule,  181(a). 

grounds  for  divorce  as,   181(e). 

judgment  by  default  as,  181(d). 

on  charge  of  insane  persons,   181  (j). 

received   with    caution,    181(1)) 

testimony  that  he  never  denied  it,   181  (k). 

where  knowledge  is  uncertain,   1*^1(1). 
By  failure   to   offer   evidence,    182. 


GENERAL    INDEX  021 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Admissions — Continued. 

By  obtaining  government  license,  I7n(d). 

By  prisoners,   178 (i). 

By  silence,  181. 

By  written  contract  of  partners,  171)  (f). 

By  writing  not  stamped,  179(e). 

Construed  with  judicial  admissions,  12(a). 

Coroner's  finding  as,  179(a). 

Cross-examination  as  to  other.   180(b). 

Estoppel  by,  177(c). 

Evidence  in  writing,  signed,  179(c). 

Falsity  of  reason  for.  178  (n). 

Former  testimony  of  party,  178(a). 

General  rule,   177  (a). 

In  foreign  language,   178(h). 

Inventory  of  estate  as,  206(b). 

Mode  of  testifying  to,  178  (k). 

Of  administrator,  206(c). 

Of  agents,  verbal  act,  201,  202(d). 

Of  co-heir  against  another.  212  (j). 

Of  corporate  agents,  207. 

Of  directors,  207(a). 

Of  fraud  against  creditors,  178(1). 

Of  ini)ired   pei-son  since  deceased,  211(d). 

Of  joint   paj-tics.   212. 

Of  mutual   affection,  178(d). 

Of  owners  in  common,  212  (i). 

Of  partners,  209. 

Of  policyholders.   205(b),(c). 

Of  principal  against  surety,  212(c),(d). 

Of  public  agents,  208. 

Of  residence  by  card,   178(b). 

Of  stockholders.  207(a). 

Of  value  of  services,  I78c. 

Proved  by  any  one.  177(b). 

Eebuttal  by  later  declarations,  180(d). 

Rebuttal  of,  178  (n). 

Rebuttal  of  admission  by  wife.   180c. 

Stated  in  charge.  92(f). 

Through  interpreter.  178  fg). 

To  physicians  named   liv   court,    178  fj). 

Truth  of  reason    for.   I7«(n». 

Value  of  property,   178(f). 

Vahie  of  services.   178(c),(e). 

Wliole  conversatiiiu  admissible.  180. 

Whole  of  written   one   admissible,   when,    183(e). 
Work  done  gratis,  178(e). 


622  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Adultery — 

Between  teacher  and  pupil,  evidence,   133  (j). 

Inferred  from  facts,  118 (j). 

Other  sexual  acts  as  evidence,  133  (i). 

Advancement — 

Evidence  to  rebut  presumption  of,   126(1). 
Evidence  when  note  is  given,  71(c). 
Presumption  of,  29(a). 
Relations  of  parties  considered,  134(h). 

Adverse  Claimant — 

In  possession — 

admission  of  title  in  another,  210(i),(j). 
offer  to  buy,  effect  of,  210  (i). 

Affection — 

Admission  of  mutual,  178(d). 
Declarations  admitted  to  show,  162(f). 

Affidavits — 

Admitted   for   one   purpose,    381(d). 

Not  used  in  contempt  proceedings,  2.')4(d). 

Not  used  in  jury  trials,  254(b). 

Not  used  on  issue  of  payment,  254(c). 

Of  subscribing  witness  to  will,  254(e). 

On  motion  to  dissolve  injunction,  254(f). 

Stating  evidential  facts,  254. 

To  show  prejudice,  94(f). 

Used   in  incidental  matters,  254(b). 

Uses  of,  254(a). 

Affirmative — 

Side  has  open  and  close,  55(a). 

Age— 

And  capacity  for  crime,  28(a). 

Agency — 

Burden  on  defense  of  dual,  47(e). 
Declarations  of  agent,  201(c). 
Holding  out  as  agent,  201(c). 
Issue  of,  opinion,  335(d). 
Ratification  of,  proof,  201(d). 
Reasonable    inference   of,    54(e). 
Statements  at  time  of  act,  res  gestae,  196(g). 
Verbal   contract  of,   74(b). 


GENERAL    INDEX  62:? 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Agent — 

(ISee  Ad7)iissio}is  and  Declarations.) 
Acts  and  declarations  of  son,  209(e). 
Admission    of    without    authority,    207(c). 
Admissions  bind  principal  wlien,  201  (a), (b). 
Business  ontrips  of,  171(b). 
Contract  of,  for  realty,  382(i),(j). 
Declarations  of  instructed,   202(a). 
Declarations  of,  to  prove  agency,  201(c). 
Defense  of  no  authority,  51(e). 
Instructions   to,  primary   evidence,  366(e). 
Real  estate,  services,  354(c),(d). 
Written  authority  of,  contract,  382  (k). 
Written  authority,  parol  evidence,  418  (i). 

Age  of  Consent — 

Presumption  in   regard  to,  28(d). 

Agreed  Case — 

No   pleading  and   evidence,    10(b). 
Eecord  on  review,   10(b). 

Agreed  Statement — 

By  mistake,   11(b). 

Dispenses   with   evidence,   10(a), (b). 

Facts — 

determined  by,  103(b). 

in  supreme  court,  11(c). 

part  of  record,   10(b), (c). 
Retraction  of,   11(a). 

Agreement — 

Changing  rules  of  evidence,  13(c). 
Essential  terms,   statute  of   frauds   382(d). 
Signed  by   one  of  parties,   3S2(1). 
To  certify   as  surety,   13(d). 
W^ritten,  statute  of  frauds,  382. 

Aiders  and  Abettors — 

Evidence   admissible    against   principal,    212(g). 

Alibi- 
Attempt  to   prove,   admission,    127    (g). 
Error    in   charge,    70(d). 
Of  another,    126(f). 
Preponderance  rule,   70(a). 
To  prove  identity   127  (g). 


624  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Allegations — 

Admitted  by  one  party,  3(d). 
Amount  due  on  account,  5(1)). 
As  to  value,  denial,  4(b),  5(a). 
Charge  as  to,   95(a) .' 
Conclusion   of   law,    116(d). 
Denied   by   one  party,   3(d). 
Effect  of,   determined   how,   3(b). 
Essential  to   recovery,   115(c). 
Evidence   different    from,    114(b). 
Immaterial,  illustrations   of,    115. 
Inconsistent,   effect   of,   3(c). 
Inserting  material,  by   amendment.    111. 

before   or   after    judgment,    111. 
Material,  denial   of,   4(a). 
]\Iaterial,   must  be  proved,    115(a). 
Must  agree  Avith  proof,  l()G(a). 
Must  be  denit'd  v. ben,  4(a). 
Needing   no   dciiir.l.   4(bi. 
Need   not   prove    imuiateri;;].    115(b). 
Of    negligence,    106(g). 
Of    ownership    wanting,    A\nivcr,    112(c). 
Proved    under    indefinite   pleading,    106(b). 
Wanting,   defect  cured,    112  (d). 

Almanacs — 

To   show  time  of  sunrise,   etc.,    172(a). 

Ambiguity — 

In  writings,  444. 

Amendment — 

Adding   elements    of    damage,    110(e). 
After   immaterial  variance,    107. 
After  material    variance,    lOS(a). 
After   verdict,   110(c).(g). 
And   statute   of   limitation,   114(b). 
Asking   for   punitive   damages,    110(c). 
By   inserting   material   allegations.    111. 

before   or    after   judgment,    111. 
Changing  malicious   prosecution,    110(b). 
Conforming   pleading  to    facts,    110. 
Evidence    admitted   without   objection,    108(e). 
General  rules  for,   114(b). 
In  furtherance  of  justice,  110(a). 
Ko    substantial    change,    110(a). 


GENERAL    INDEX  625 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Amendment — Continued. 

Of    allegations    substantially,    114(b). 

Of   defoetive   petition    after  verdict.    111(b). 

Of   defertive  petition,  record,    108(f). 

Of  petition  available,  when,   110(h). 

On   failure   of   proof,   114(b). 

On  showing  by  adverse  party,   108(b). 

Presumption   in  favor  of,  110(d). 

States   a  new  cause  of  action,  when.   111(c). 

Time  of,  after  argument,  110(b). 

Time  of,  after  motion   for   new   trial,    110(d). 

Time  of,  at  close  of  evidence,   110(e). 

Time  of,  before  or  after  judgment.  110(a). 

To  conform  to  special  findings,  110(d). 

To  plead  limitations,   7(b). 

When    evidence   excluded,    108(d). 

When  variance  is  great,   108(c). 

Amount — 

Claimed   on   contract,  5(a). 
Due  on  account,  5(b). 

Answer — 

Defective,  no  objection,    llG(c). 

Denial  necessary  to  new  matter.  2(h). 

Evidence    admissible    under    indefinite,    106(d). 

Issue  made   by  denial    in,    1(a). 

On   defective    novation,    no    objection,    116(e). 

Proof  of,  by  sworn  copy,  412(f). 

Without  denial,   no    objection,    116(c). 

Appliance — 

Comparing   one  with   others,    126(c). 
Operation  of,  expert,   360(a). 

Applicant — 

In    special    ])n)(eedings,    burden,    S9(a),(b). 

Appraisement — 

Admitted    to   prove    contents   when,    391(d); 

Appropriation — 

Limitation    of  witnesses,  262(e), 
View  of  premises,  98(f),  246. 

Arithmetic — 

Noticed    as   a   stud^-,    25(e). 


626  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Arrest — 

In  good  faith,   324(b). 

Justification,   burden   of  proof,   47(c). 

Resistance,   128  (g). 

Arson — 

Employment   of  principal,   res  gestae,   216(a). 

Order  of  evidence,   120  (g). 

Kecord  in  co-defendant's  case,  413(b). 

Art- 
Judicial  notice  of  facts  of,  24. 

Assault — 

With  intent  to  rape,   154(b). 
With   intent  to  rob,    154(f). 

Assault  and  Battery — 

Character  of  plaintiff',  141(a). 
Preponderance  rule  in,  S4(d). 
Wealth  of  defendant,  evidence,   134(d). 

• 

Assessments — 

Burden  on   svxit  to   enjoin,   S9(fl),(e). 
Parol   evidence  to    sliow    irregularity,   399(g). 
.  Presumption  of  regularity  of.  36(c). 
Secondary  evidence  of.  366  (  a ) . 

Assignment — 

Between    co-plaintiffs,   adversary,    186(a). 
Incomplete  contract,  parol,  436(b),(c). 

Associates — 

Character  of  immoral  women,   143(b). 

Attachment — 

Burden  of  proof,   S7(a).(b). 
Burden   to   show   exemption,   87(c). 

Attorney — 

Admission   for  person  in  prison.  8(a). 
Admissions  in  argument,  14(c). 
Admissions    in   opening  statement.    14(d). 
Authority  during  trial.   14(a). 
Authority  presumed  from  appearance.  7(e). 


GENERAL    INDEX  627 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Attorney — Continued. 

Fee  of,  without  evidence,   98(h). 
Power   to   waive  objections,    14(a). 
Value  of  services,  356. 

expert  opinion,  356 (a). 

hypothetical  questions,  35(5. 

opinion   based   on  personal   knowledge,    356(c). 

Attorney  and  Client — 

Privileged  communications — 

accused  as  a  witness,  268(f). 

as  to  future  wrong-doing,  268(e). 

attorney   as  a  subscribing  witness,   268(i),(j).  • 

attorneys   knowledge   outside   relation,   268(h). 

client   as   a  witness,   268(a),(c). 

client  may  waive  privilege,  268(a),(c). 

counselor  not  admitted  to  practice,  268 (k). 

report  of  accident  for  attorney,   268(g). 

third   person    present,   268(d). 

waiver  of  privilege,  268 ( a), (c). 

Auction — 

Price    of    property   at,    l.'iO(l). 

Auditor  of  County — 

Judicial   admission   of,  8(b). 
Proceedings   of,    37(b). 

Auditor  of  State — 

Certified   copies  of  files,  396(c). 

Authority — 

Issue  of,   (ij)inion,   3.35(d). 

Automobile — 

Speed    of,    opinion.    361(e),(f), 

Autopsy — 

Report  of,  not  evidence,  when,  334(e). 
Autoptic  Preference — 

Dcfiiiil  ion   of,   243(a). 

Averments — 

(See   Allegations.) 


528  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

B 

Bank — 

Writings  of,  in  behalf  of  itself,   186(d). 

Bank  Notes- 
Knowledge    of   forgery,    146(f). 

Bankruptcy — 

Notice   of   proceedings   in,    146(b). 

Barrels — 

•  (Similar  manufacture  of,  131(b). 

Bastard — 

Hhovra  to   jury  to   identify  father,    127(d),   244(a). 

Bastardy — 

Examination   lost,   parol,   415(c). 
Order  of  evidence,   120(e). 

Belief— 

Of  a  party — 

arrest  in  good  faith,  324(b). 

creditor  relied  on  statement,  324(e). 

employe   relied  on   promise,   324  ( d ) . 

in   malicious   prosecution,    324(b). 

party  affected  by  threats,   324(f). 

question   of  prudence  or  good  faith,   324(a). 

taking  possession    in  good   faith,   324(c). 

Bigamy- 
Negative   allegations,  proof  of,  66(d). 
Prima  facie  evidence  as  to  former  marriage,  66(d). 

Bill  of  Exceptions — 

Agreed  facts,  10(c),(d). 

Bastard  child,  244(a). 

Experiments,  251(a). 

Models,  251(e). 

Moving  picture,  250(f). 

Photograph.   250(b). 

Proving  former  testimony,  174(a). 

Real   evidence,  244(a). 

Showing  ordinance,  20(d). 

View  of   premises,  246(c). 

X-ray,   250(h). 


GENERAL    INDEX  629 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Bill  of  Exchange — 

Declarations  by  holder,  211(g). 
Parol   evidence  excluded,   423(g). 

Bill  of  Lading— 

As   a  receipt,   parol  to  vary,  426(e). 

Jus  disponendi,  evidence,  426 (j). 

Meaning  gathered    from    instrument,   426(b). 

Meaning  of  terms,  usage,  441(b). 

Parol  evidence  excluded,  when,  426. 

Parol  to  vary,  consignee,  426 (k). 

Blasting — 

Evidence  of  negligence,   126(i). 

Blood- 
Chemical  analysis  of,  357(f). 

Bloodhound — 

Judicial   notice  of   use  of,   25(b). 
May  identify  burglar,   127(e). 

Board — 

Consent   of,  in  writing,  as  board,  450(f). 
Member  as  agent  of,  208.    (e),(f). 

Boats — 

Specific   instances  of   sinking,   131(a). 

Bond  (Negotiable) — 

Execution   denied,  primary  evi(h»nce,  367(a).  ■ 
ISale  at  premium  noticed,  25(f). 

Bond  (Official)— 

Execution,  where  proved  by   certified  copy,  380(e). 
Presumption    of    regularity   of   approval,    36(d). 

Bond  (Surety)  — 

Evidence  to  correct  mistake,  421(d). 
Parol  evidence  excluded.  421. 
Referred    to   contract,   evidence,   381(f). 
Referring  to   judgment,   correction,  421(c). 


630  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Books — 

Abstracts    of,    secondary    evidence,   .368. 

Copy   and   inspection,   375. 

Entries  in,  principal  and  surety,  212(e). 

Examination  by  master,  376. 

Inspection   and  copy,   375. 

Inspection  refused,   375(d). 

objection   to  evidence,   375(d). 

punishment,  375  ( d ) . 
Order   to   produce,    374(b)    et   seq. 

at  trial   or  hearing,  3i74(f). 

when  criminating,  374(g). 
Partner    inspecting    partnership,    37.5(h). 
Part  offered   in   evidence.   375(f). 
Sent  to  jury,  small  part  in  evidence,  381(e). 

Boundary — 

Proof   by   witness,  403(h). 

Reputation  as  to,  168(a),(d). 

Vendor  pointing  out,   res   gestae,    196(f). 

Boycott — 

Effect   of,  res  gestae,    196(h). 

Brake  Appliance — 

Operation   of,   expert,   360(b). 
Stopping   of   car,    expert,   360(c). 

Brakeman — 

Duties  of,  opinion,   359(c). 

Breach  of  Promise — 

Declarations  of   purpose,    196(b),(e). 

Physical  examination  in,  249(g). 

Preparing  for  marriage,   196(b). 

Procuring  bedding,   196(b). 

Receiving  attentions,   196(b). 

Unchaste  acts  of  plaintiff,  rebuttal,   139(g). 

Wealth  of  defendant  as  evidence,  134(e). 

Bribery — 

Attempt  to  bribe  an  officer,  128 (i). 
Declarations   taken   by   dictograph,   217(a). 
Order  of  evidence,  120(h). 
Similar  offenses   to  prove  intent,   154(c). 


GENERAL    INDEX  631 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Brick- 
Laid   by   thousand,  custom,  439 (j). 

Bridge — 

Comparing  near-by  bridge  witli,   131(c). 
Prior  repair  of  defective,  123(0). 

Brokers — 

Value   of   services,    experts,    evidence,    354(a),(b). 

Brother — 

Presumption   that   he   is  of    full    blood,   54(d). 

Building  Contract — 

Judicial    notice    in    construinfr.    l<>(g)- 

Building  Material — 

Value    of,   spring   and    fall,    353(d). 

Buildings — 

Photographs  of,  2.')0. 

Burden  of  Proof- 
Accused  denying   intent,   78(b). 
Act  done  by  another,  defense,  51(g). 
Agent  without  authority   as  a  defense.  51(e). 
As  to  arbitration   of   loss,   53(b). 
As  to  conditions  precedent,  53(c). 
As  to  conditions  subsequent,  53(d). 
Breach  by  plaintifT  as  a  defense,  51(c).  * 

Burden  never  shifts,  61(b),  78. 
"Burden  of  proof,"  use   of,   61(b). 
Charge  as   to   shifting  "burden,"   63(a),(b). 
Charge  to  jury  on,  63(a). 

when  case  is  close,  64(b). 
Contract  difl'erent  from  that  sued  on,   51(b). 
Contract  precluding  recovery  as   a  defense,  51(d). 
Defense    containing   no   new   matter,    51  (a), (j). 
Defense  denying  title  in  plaintiff  and  claiming  it,  51  (i). 
Defense  mere  denial,  51(a),(j). 
Defense   of  alibi,   effect   of,   79(a)  ,(b)  ,(c) . 
Defense  of  drunkenness,  78(c). 

Defense  of  insanity  by  preponderance,  81 (a)  ,(b) ,(c) . 
Denial  and  new  matter  in  same  pleading,  49(a). 
Denial  of  delivery,  .')2(a). 


532  ■ GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Burden  of  Proof — Continued. 

Denial  of  ownership  in  good  faith  befoic  due,  52(b). 

Denial  or  equivalent  as  defense,  40(a),  51(a),(j). 

Dual   agency   as   a  defense,   47(e). 

Error  in  charge,  effect  of,  64. 

Extension  of  time,   defense,  48(c). 

Failure  of  accused  to  testify,  76(g). 

Failure   of  consideration    as   a  defense,   52(c). 

False  statements   as   a  defense,  47(f). 

Forger  admitting  signing,  effect  of,  7S(d). 

Former  adjudication  as  a  defense,  48(a). 

Fraud  in  assignment  as  defense,  ol(h). 

Fraud   in   obtaining  a    release,   48(b). 

Illustrations  of  shifting  "burden,"  65. 

In   attachment,   87. 

In  criminal   cases,   76(a). 

In    injunction,    S8(a),(b). 

In  liquor  cases,   78 (g). 

In  local  option  case,  78 (e). 

In  mandamus,   89(d). 

In  negligence   cases,   86(a),(b). 

In  special  proceedings,  89(a)  ,(b)  ,(e) . 

Instructing  jury   on    shifting  "burden,"  61(d). 

In   will   contest,   85(c),(d). 

Justification   in   making  arrest,  47(c). 

Justification  of  discharge  of  servant,  47(d). 

Negative  allegations,  adversary,  66(b), (d). 

Negative  allegations,  description,   66(a). 

Negative  allegations,  essential,  66(a). 

Negligence,  40(e)  ,(f)  ,(g) . 

No  new  matter  in-defense,  51(a),(j). 

Of  contributory  negligence,   86(d),(e). 

Of  defense  of  duress,  80  ( c ) . 

Of  some  single  fact,  54(a). 

On   answer  narrowing  issue.   51  (j). 

On  defendant,  when,  47(a). 

On  denial  and  averment  of  specific  breaches,  53(h), (i). 

On  denial  of  performance,  5.'^(h). 

On  issue  narrower  than  general    issue,  51  (j). 

On   plaintiff,   Avhen,   46(a).(b). 

Open   and  close  and   sliifting  "burden,"  61(c). 

Payment  and  release  as  a  defense,  48(b). 

Payment  as   a  defense,   47(b),   52(c), (d). 

Plea  of  "not  guilty,"  effect  of,  78(a). 

Presumption  as  to  burden,  40(a). 

Presumption   of   innocence,   27(a). 


GENERAL    INDEX  633 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Burden  of  Proof — L'ontiinied. 

Prior  insanity  does  not  shift,  Sl(e).. 

Question    whether   party   has  sustained,  102(e). 

Kelease  as  a  defense,  47  (i  I,  4S(b). 

Rests  on  party  holding  afhrniative,  45(a). 

Right  of  possession  as  a  defense,  47(h). 

Self-defense  by  a  preponderance,  S2(a),(b). 

Shifting   "burden,"  60(a),   61. 

act   in   fraud  of  creditors,   6r)(gMh). 

capacity  of  grantor,  65 (k). 

conditional  contract,  60(b). 

contempt  of  court,  66(e). 

continuance  of  marriage  relation,  66(d). 

fraud  by  grantee,  65(j). 

holder  of  note  is  owner,  6.>(n). 

holding  in  due  course,  65  (m). 

illegal   vote,  66(c). 

inaccuracy   in  telegram,  65(e). 

in  clear  evidence  rule,  67(b). 

loss  of  goods  by  carrier,  65  (o). 

measure  of  damages,   65(b). 

negligence,  60(c),(f). 

note  a  promise  to  pay,  65(1). 

payment,  60(e) . 

poll-books  evidence  of  contents,  65(i). 

presumption  of   incapacity,  65(d). 

signature  to  release,  65  ( f ) . 

title  to  canal   lands,  65(a). 

title  to  right-of-way,   65(c). 

want  of  consideration,  60(d). 
Special  contract  and  payment,  defense,  51(d). 
Statute   of  limitation,  defense,  47(g). 
Statutory   rule,  45(a). 
Substantial  performance,  53(a). 
Tender   of  performance,   53(a). 
To   prove  capacity  to   commit   rape,   78(f). 
To   rebut  an   inference,   54(b). 
To  show  confession   involuntary,   187(e). 
To  show  corpus  delicti,  80(a). 
To  show  defendant's  capacity,  80(a). 
To  show  excuse  for  breaking  stipulation,  53(g). 
To  show  facts  to  exempt  accused,   80(a). 
To  show  immunity   for  loss  of  goods.  53(f). 
To   show   insanity  at  time  of  trial,   81(g). 
To  show  insanity  is  on  applicant,  when,  81(g). 
To  show  performance,  53(a),(h). 


634  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Burden  of  Proof — Continued. 

To  show  suicide  of  insured,  53(e). 

To  show  testamentary  capacity,  85(g). 

Want  of  consideration,  defense,  51(f),  52(a). 

When  answer  contains  new  matter,  47(a). 

When   defense    is    anticipated,   50(a). 

When   reply  contains  new  matter,  48(a). 

When  writing  is  made  part  of  application,  46(b). 

Will  lost,  spoliated  or  destroyed,  85(e),(f). 

Burglar — 

Identified   by   bloodliound,    127(e). 

Business — 

Evidence  explaining   nature   of,    124(d). 

Business  Entries — 

By  agents,   171(b). 

By   port-warden,    171  (k). 

Field-notes  of  surveyor,  171(f),(g). 

General    rule,    171(a),   391(a). 

Hospital  records,   171(h). 

Illustrative   cases,   391(b)    et  seq. 

In   a  memorandum  book,   171  (i). 

Made  in  usual  course  of  business,  171(a),(d). 

On  stub  of  check-.book,  171  (j). 

Reports  of  gaugers,  171(e). 

Eequirements   not   fulfilled,    391(f),(g). 

c 

Canals — 

Epitome  of  specifications  not   evidence,   396(d). 
Leases   of  water,   certified  copies,   396(e). 
Specifications   admissible,  when,   396(d). 

Capacity — 

In  rape,  burden  of  proof  to  show,  78(f). 
Presumption  of — 

for   crime,   28(a). 

for  negligence,  28(c). 

Carrier— 

Burden  of  proof  to  show  immunity  for  loss,  53(f). 
Declaration  of  agent  of,  204. 
Evidence  of  loss  of  goods  by,  65 (o). 


GENERAL    INDEX  635 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Cars — 

Life-guards    on,   experts,   360(d). 
Speed  of  other  cars,   131(f). 
Stopping  ear,  distance,  360(c). 
Time  to  stop,  131(f). 

Car-wheels — 

Break,  opinion  as  to  time  of,  360(f). 
Value  of  hammer-test,   opinion,  360(f). 

Case — 

Rebutj;al  in  a  triangular  case,  59(d). 

Cause — 

Withdrawn    from    jury    on    opening   statement,   103(e). 

Caveat  emptor — 

Custom    changing    rule    of,    439(e). 

Character — 

After  alleged  oflfense,  140 (m). 
As  of  what  time,   136(e). 
Association  with  lewd  persons,   137(g). 
Charge  on  weight  of  such  evidence,  145  (c)  et  seq. 
Creating  reasonable  douht,   145(d). 
Cross-examination  of  witness  as  to  woman's,  137(g). 
'Element  of  damage,   136(d). 
General,  definition  of,   140(d),(e). 
General,  excludes  particular  acts,  140(g). 
Good  character  to  rebut  evidence  of  bad,   143(c). 
In  action  for  indecent  assault,  136(b). 
In  defense  of  self-defense,   141. 
In   doubtful   cases,    145(b). 
In  libel   case,    137(f). 
In   malicious   prosecution,    138(c). 
In  slander,  137. 

Kot  what  persons  have   said,    140(li). 
Of  accused,  issue,   140(a),(b). 
Of   applicant   for   preacher's   license,    130(c). 
Of   associates,   immoral   women,    143(b). 
Of   customers,   common    prostitutes,    143(d). 
Of  deceased,  issue  raised,  how,   141(f). 
Of  female  of  good   repute,   139(d). 

specific   acts,   139(e). 
Of   husband,   unlawful  marviage   license,    143(a). 


636  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Character — Continued, 

Of  known  gamblers,  thieves,  etc.,   140  { n ) . 

Of   known    pickpockets,   watch-stufTers,   etc.,    140 (n). 

Of  parties,  general  rule,   136(a). 

Of  physician  prescribing  liquor,   143(e). 

Of  plaintiff'  for  chastity,  slander,  137(b). 

Of  plaintiff  in  false  imprisonment,  13S(a),(b).  * 

Of  prosecutrix  attacked,    1.39(f). 

Of  prosecutrix  in   rape,   139(a). 

Of  third  persons,  143. 

Particular  quality  or  trait,   140(f), 

Part  of  the  issue,   136(d). 

Presumption  in  favor  of  good,  145(f). 

Presumption  that  plaintiff's  is  good,  40(b). 

Rebuttal   of  evidence   of  good,    140(1). 

Rebutting  good,  by   showing  bad   local,    140(1). 

Repute  in  false  imprisonment,  138  (b). 

Weight  of  evidence,  145. 

Weight  of,   in   cases  of  great  crimes,   145(e). 

Witnesses,    cross-examination    on    similar   traits,    140(j),(k) 

Witnesses,   limit   of   number,    145(g),(h). 

Witnesses  may  have  heard  nothing  about,   140(h). 

Witnesses,   praecipe   for,    145(h). 

Charge — 

Abandoned   women,   testimony   of.   92(b). 

Abstract   legal  rules   in,  95  ( i ) . 

Accomplices,   testimony   of,   92(e),(f). 

Admission    stated  in,   92(f). 

Annexing  material  qualifications  to,   95(h). 

Applicable  to  issues  and  evidence,  95(f). 

As  to  burden  to  prove  contributory  negligence,  86(f), 

As  to  evidence  showing  compromise,   lS3(e). 

As  to  failure  to  contradict  evidence,  93  (h),(i) ,  ( j) . 

As  to  positive  testimony,  94(d),(e). 

As  to  presumption   of  negligence,   40(h). 

Cautioning  against    improper  use  of  evidence,  97(f). 

Circumstantial  evidence  of  crimes,   118(g). 

Cures  error   in   exclusion,  when,   159(a), 

Curing  error    in   admission,  223(f). 

Definition  of,  95(i) . 

Detectives,  testimony  of,  92(c). 

Emphasizmg  certain  facts,  97(d). 

Error   in,  duty  of  reviewing  court,  64(c). 

Error  in  one  of  two  issues,  96(a). 


GENERAL    INDEX  637 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Charge — Continued. 

Error  must  be  prejudicial,  90(m). 
Grouping  and  summarizing  the  issues,  95  (c). 
Hypothetical  statement  of  facts  in,  95 (k). 
In  favor  of  party  holding  burden,  10-2(f),(g). 
Instructions  to  disregard,  240. 

form  of,  241. 
Object  of,  95(d). 
Omitting  material   facts,  95  (k). 
On  admission  of  parties  during  trial,  10(e). 
On  a  single   issue,  95 (j). 
On  burden,  evidence   close,  64(b). 
On  burden  of  proof,  63  ( a ) . 
On  credibility  of  witnesses,  91  (i). 
On  defense  of  alibi,  79. 
On  falsus  in  uno,  91(c). 
On  intent  to  kill,  155(d). 
On  natural  consequences  of  act,  155(d). 
On  preponderance  rule,  insanity,  81  (d). 
On  presumption  of  fact,  41(a). 
On  question  not  at  issue,  95'(f). 
On  reasonaible  doubt,  77. 
On  shifting  '-'burden,"  63(a), (b). 
On  tendency  of  evidence,  90(i). 
On  weight  of  character  evidence,  145(c)  et  seq. 
Prejudicial  error  on  burden  of  proof,   64  (a)  ,(b)  ,(e) . 
Presvmiption  of  innocence,  27(b). 
Refusal  to,  as  to  either  of  two  causes,  96 (c). 
Relatives,  testimony  of,  92(d). 
Repetition  of  a  part  of,  95(d). 
Requiring  preponderance  of  wrong  party,  64(a). 
Statements  indicating  opinion,  91(e). 
vStating  object  of  evidence,  97(f). 
Stating  sul)stance  of  evidence.  9:3  (j). 

huinming   up   evidence,   97(a),(b).  , 

Teclinieal  terms  exjilained  in,  95(e). 
Testimony  of  accomplices,  259. 
To  disregard  evidence,  240. 

form  of,  241. 
To  jury  on   sliifting  '-Ijurdcn,"  61  (d). 
That  fact  is  fully  proved,  93(g). 
That  proof  is  insufTioient,  93(b). 
That  testimf)ny  is  not  clear,  93(c). 
Undue   prominence  to  facts,  97(c). 


638  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Chattel  Mortgage- 
Mortgagee  taking  possession,  324(c). 
Parol  evidence  to  identify  property,  456(e), 
Power  of  sale  reserved,  432(f). 

Check-book — 

Entry  on  stub  of,  171  (j). 

Chemical  Tests — 

As  evidence,  357. 

Child— 

Clear  evidence  to  invalidate  the  adoption  of,  72(b). 
Presumption  as  to  capacity  of,  28(a)  ,(b)  ,(c) . 
Presumption  of  legitimacy,  31(b). 
Presumption,  one  under   seven,  44(a). 
Value  of  services,  opinion,  355(c). 

Christian  Science — 

Judicial  notice  of,  24(c). 

Cincinnati — 

Some  history  judicially  noticed,  25(f). 

Circumstantial  Evidence — 

(See  Indirect  Evidence.) 
And  reasonable-doubt  rule,  76(d). 
Charge  in  criminal  cases,   118(g). 
Most  convincing,  when,  118(e). 

City- 

Commercial  relations  of  cities  noticed,  23(b). 

Councilman  can  not  testify  to  intent  of,  208(e). 

Declarations  of  agent  of,  208 (b)    et  seq. 

Defects  in  streets  reported  by  police,  208(d). 

In  a  certain  county  judicially  noticed,  23(e). 

Map  of  Toledo  judicially  noticed,  23(c). 

Over  four  miles  from  a  to\vnship,  judicially  noticed,  23(f). 

City  Engineer — 

Declarations  of,  208(b). 
Records  of,  admissibility,  399(f). 
Testimony  of,  as  to  city  records,  399(f). 


GENERAL    INDEX  QdQ 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Civil  Action — 

Plea  of  guilty  admissible  in,  9(c). 

Claim — 

Amendment  changing,  110. 

Material  allegation  wanting,  defect  waived,  112(c). 

Procuring  indemnity  on,  130(n). 

Clear  and  Convincing  Evidence — 

And  preponderance  rule,  67(b). 

And  strong  presumptions,  67(b). 

In  transactions  not  favored,  75. 

Not  required,  when,  67(c). 

On  error,  reviewing  evidence,  67(d). 

Rule  disregarded,  67(d). 

Shifting  "burden"  rule  involved,  67(b). 

To  attach  restriction,  68(e). 

To  change  note  to  advancement,  71(c). 

To  establish  a  trust,  69(a),(b). 

To  invalidate  adoption  of  child,  72(b). 

To  make  nunc  pro  tunc  entry,  72(a). 

To  prove  agency,  when,  74 (b). 

To  prove  contract  for  services,  when,  75(e)    et  seq. 

To  prove  estoppel,  74(c). 

To  prove  false  application  for  insurance,  75(h). 

To  prove  gifts  causa  mortis,  75(a). 

To  prove  gifts  inter  vivos,  75(b). 

To  prove  lost  deed,  73(a). 

To  prove  lost  will,  73(b). 

To  prove  verbal  insurance,  74 ( a ) . 

To  reform  an  instrument,  70. 

To  show  misconduct  of  notary,  72(d). 

To  show  mistake  of  council,  72(d). 

To  show  want  of  service  of  summons,  72(c). 

To  vary  deed  and  acknowledgment,  68(e). 

To  vary  deed  of  trust,  GS(b). 

To  vary  deed,  luidue  influence,  68(d). 

To  vary  note,  71(a)   et  seq. 

To  vary  release,  68(b). 

To  vary  writings  generally,  68(a),  71(b). 

Clergymen — 

Communications  privileged,  266(a). 

Clerk  of  Court— 

Certifvin"  fiicts   imt  nf   rciord     IHfd). 


540  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Coal- 
Parol  defining  merchantable,  441  (g). 
Value,  expert,  353(c). 

Cohabitation — 

Reputation  to  prove,   167  (b)  ,(d)  ,(e) . 

Co-heirs — 

Admission  of  one,  effect  on  others,  212 (j). 

Commercial  Publications — 

To  prove  notice,  173(a). 

To  prove  partnership,  IZS-lb). 

Commissioner — 

To  take  depositions,  officer,  257  (j). 

Common  Knowledge — 

Matters  of,  judicially  noticed,  15(a),  25. 

Common  Report — 

Malice  in  libel  rebutted  by,  158(e). 

Competency — 

Admission  en  promise.   120 (i). 
Decided  by  court,  90(j). 

Compromise — 

Evidence  showing,  charge,   183(e). 
Offer  to,   incompetent,   183. 

Condition — 

Shown  by  prior  accidents,  148(b)    et  seq. 

Condition  Precedent — 

Order  of  evidence,  120(f). 

Conduct — 

After  an  act,  128. 

Agreement  to  provoke  quarrel,  128(d). 

Indicating  guilty  connection,   128  (b). 

Manifesting  consciousness  of  guilt,  128(e). 

Of  accused,  too  remote,  130(e). 

Seeking  a  quarrel,   128(d). 


GENERAL    INDEX  641 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Conductors — 

As  expert  witnesses,  359(b). 

Confessions — 

Answers  of  accused  to  charges  by  others,   189 (j). 

As  hearsay,  1 65  ( a ) . 

As  to  embezzlement,  indefinite,  187  (i). 

Before  coroner,  accused  properly  cautioned,  189 (c). 

Before  coroner,  corpus  delicti.   193(c). 

Burden  of  proof  to  show  involuntary,  187  (e). 

Charge  as  to  irrelevant  matter,   192(f). 

Charge  on  exculpatory  part,  192(d). 

Covering  other  crimes,  192(f). 

Credibility,  192(c). 

Evidence  against  confessor  only,  191(a). 

Evidence  of  corpus  delicti,  193(a). 

Example  of  voluntary,   189(b),(e). 

Exculpatory  parts  admissible,   192(b). 
province  of  jury,  192(b). 

Extorted  by  duress,  involuntary,  188(e). 

Extrajudicial,  in  homicide  cases,  193(b),(d). 

Facts  corroborating,   corpus  delicti,   193(e). 

Falsehood  in  obtaining,  189(g). 

Fraud  in  obtaining,  effect,  189  (g). 

Induced  by  hojie  or  fear,   187(a),   18S(a). 

In  open  court,  in  homicide  cases,  193(b). 

Involuntary,  degree  of  influence,   188(b). 

Involuntary,  not  admissible,  187  (c),  188(a). 

Involuntary,  why  excluded,  188(f). 

Irrelevant  matter  of,  exclusion,   189  (k). 

Made  before  the  grand  jury,   190(a). 
admitting  guilty  knowledge,  190(b). 

Made  in  open  court,  189(h). 

after  proper  advice,  189(f). 
without  being  cautioned,  189(f). 

Mental  state  of  accused,   187(c),(d). 

Must  be  vohuitary,  187(a). 

]\lust  relate  to  charge,  187 (i). 

Obtained  l)y  officer,  presumption,   lS7(b). 

Obtained  by  prosecutor,   lS8(d),  lS9(d). 
duty  of  court,  188 (d). 

Of  aiders  and  abettors,  191. 

Of  arson  and  corpus  delicti,  193(f). 

Of  principal,  effect  on  accomplice,  191(c). 

Of  principal,  effect  on  procurer,  191(b). 


642  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Confessions — Continued. 

Of  procurer,  effect  on  principal,  191(a). 
Preliminary  inquiry,  187. 

evidence  on,  187(g). 

excluding  jury,   187  (j). 

open  and  close,  187(f). 

record  on,  187 (f ). 

submitting  evidence  to  jury,  187  (li). 
Sending  signed  one  to  jury-room,  192i(g). 
Similar  to  admission,  188(c). 
To  magistrate  privately,  189  (i). 
Under  promises  of   immunity,   188(a). 
Voluntary,  question' for  judge,  187(a),(c). 
Voluntary,  satisfactory  proof,  189(a). 
^Yeight  of,  for  jury,  192(a), (b). 
When  both  oral  and  vpritten,  192(e). 
Whole  confession  admissible,  192(a). 

Consciousness — 

Evidence  to  rebut,  126(h). 

Consideration — 

Evidence  on  indefinite  allegation,  106(d). 
Evidence  to  rebut,  126(b). 
"Shifting"  of  burden  of  proof,  60(d). 

Conspiracy — 

Averments  of,  in  indictment,  214(b). 

Conspirator  showing  alibi  as  to  another,  126(f). 

Degree  of  proof,  213(f). 

Indirect  evidence  admissible  to  prove,  12S(k). 

Not  shown  by  ill  feeling  of  parties,  219(e),(g). 

Ofl'ense  planned,   214(e). 

Order  of  evidence,  120(h). 

Paying  money  to  confederate,  215(b). 

Preliminary   inquiry  by  judge,  213(c),(d). 

Prima  facie  proof,  213(c),(d). 

Several  larcencies,  former  acquittal,  216(b). 

Shown  by  consorting  and  consulting,    126(f). 

Similar   conspiracies  as  evidence,   147  (j). 

To  burn  a  building,  res  gestae,  216(a). 

To  fabricate  a  defense,   12'8(k). 

To  pass  counterfeit,  evidence,  216(c). 

To  present  false  claim  to  officers,  217(b). 

Weight  of  evidence  of,  error,  213(d),(e). 


GENERAL    INDEX  643 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Conspirators — 

Acts  and  declarations,  mob,  215(e). 

Acts  and  declarations,  res  gestae,  213,  219  ( a),  (c). 

Acts  during  pendency  of  enterprise,  214(a). 

Acts  in  furtherance  of  common  object,  214(a). 

Acts  of  associate  in  murder,  215(a). 

Acts  of,  in  absence  of  defendant,  214(b). 

Declarations  admissible  against  himself,  219(d). 

Declarations  of,  in  forgery,  216(d). 

Declarations  of,  personal  intention,  219(b). 

Declarations  of,  taken  by  dictograph,  217(a). 

Indictment,  averments  of,  214(b). 

Indictment  of,  joint,  214(a),(b). 

Must  be  connected  with  offense,  219(e),(f). 

Narrative  of  past  occurrence,  219(0). 

Offense  planned  by,  214(c). 

Prima  facie  proof,  213(c), (d). 

Constable — 

Proof  of  official  position,  400 (k). 

Construction — 

By  parties,  449. 

Consumption — 

Curable  disease,  not  noticed,  24(c). 

Contempt — 

Affidavits  not  used,  254(d). 
Judicial  notice  of  facts  in,  21  (d). 
Of  court  on  mere  suspicion,  308(e). 
Prima  facie  evidence  of,  66(e). 
Reasonable  doubt,  rule  in,  76(h). 
Witness  refusing  to  answer,  308(c). 

Continuance — 

Presumption    of,   42. 

Contract — 

Agent's,  for  realty,  382(i),(j). 

Allegations  of  value,  5(a). 

Amount  claimed,  5(a). 

Between  principal  and  surety,  parol,  437. 

Building,  parol  to  identify  property,   453(a). 

By  agent,  relation  of  parties,  451(d)   et  scq. 


644  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Contract — Continued. 

By  telephone,  165(b). 

Clear  evidence  to  prove  verbal  insurance,  74(a). 

Clear  evidence  to  reform,  70(c). 

"Complete"  system,  ambiguity,  444(j). 

Conclusions  as  to  breach,  33.5(e). 

Construction  by  parties,  449. 

Construction  of,  court  and  jury,  383. 

Deed  as  one  of  sale,  382  ( e ) . 

Essential  terms,  statute  of  frauds,  382  (d). 

In  restraint  of  trade,  conduct  and  dealings,  218(b),(c). 

Intent  as  to  term  of  contract,  153(e). 

In  writing,  verbal  warranty,  418(c), (d). 

Of  buyer,  verbal,  195(b). 

Parol  evidence  excluded,  418. 

Party  presumed  to  know  law,  44  ( d ) . 

Presumption   of  regularity  in  letting,   36(b). 

"Shifting"  of  burden  as  to  conditional,  60(b). 

Signed  'by  one  of  parties,  382(1). 

Surrounding  circumstances,  parol.  445. 

Tendency  and  effect  shown,  how,  123(b). 

Time  of,  as  housekeeper,  125(e). 

Time  of  shipment,, ambiguity,   444(h). 

Value  of  work  admitted,  when,  125(f). 

Will  as  one  of  sale,  382(f). 

With  relation  for  services,  proof  of,  75(c)    et  seq. 

Written,  statute  of  frauds,  382. 

Contribution — 

Nature  of  transaction,  parol,  4.37(b),(c). 

Conversations — 

Between  buyer  and  seller,  195(b). 
Between  co-parties,   adversaries,  184(a). 
Understanding  of,   323(b),(c). 

Conveyance — 

Intent  of  grantor,  32(5  (b). 
Presumption  of,  by  trustee,  38  (b). 

Corners — 

Reputation  to  prove  lost,  168(c). 

Coroner — 

Finding  of,  an   admission  when,  179(a). 
Inquest  of,  not  evidence  when,  334(d). 


GENERAL    INDEX  645 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Corporation — 

Admissions  of  officers,  207  (a)  ,{b)  ,(c) . 
Admissions  of  stockholders,  207  ( a ) . 
Authority    for   agent's    admission,    207(c). 
Certificate  of  incorporation,  conditions,  397(a). 
Charter  noticed,  when,  19(d). 
Compelling  officers  to  testify,  293(a). 
Declarations  of  agents,  207. 
Declarations  of  transfer  agent,  207(e). 
Judicially  noticed,  when,   19(e). 
Manager  of,  competency  of,  275(b). 
Manager's  letter  as  an  admission,  207(b). 
Officer's  admission  as  to  position,  365  (e). 
President  disqualified  to  testify,  when,  287  (c). 
Proof  of  incorporation — 

by  affidavit  to  answer,  397(b). 

by   certificate  of   incorporation,  397(a). 

by  reputation,  397(c),(d). 
Purpose  of,  shoAvn  by  oral  evidence,  365(d). 
Records  in  behalf  of  itself,  186(b). 

Corpus  Delicti — 

Burden  of  proof  to  show,  80(a). 

Definition  of,  193(a). 

In  arson,  19S(f). 

In  homicide  cases,  19'3(b),(d). 

Issue  by  "not  guilty,"  93  (j). 

Council — 

Clear  evidence  to  show  mistake  of,  72(d). 
Contract  with,  parol  evidence,  399(h). 
Mem'ber  as  agent  of  board,  208(e). 
Presumption  of  validity  of  acts  of,  35(b), (c). 

Count — 

Error   in   admitting  evidence,   acquittal,   233(d). 
Error  in  ruling  on  defective,  233(c). 

Counterclaim — 

Not  connected  with   actiDii,   ()l)je(tion    to,    113(d). 

Counterfeit — 

Intoxication  as  a  defense  to  passing,  Kil  (e). 

C  ounterf  citing — 

Acts  of  associate,  216(c). 


646  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
County — 

Notice  that  it  is  within  state,  23(d), 

Court — 

Applies  law  to  facts,  90(h). 
Bound   by  judicial   admissions,    7(h). 
Determines  admissibility,  90(j). 
Determines  competency,  90(j). 
Determines  questions  of  law,  90(b). 
Discretion  of,  in  open  and  close,  57(a),(b). 
Falsus  in  uno,  charge,  91(c). 
Judges  of  common  pleas  noticed,  21(b). 
Jury  receives  law  from,  90(c). 
Law  and  fact  mixed,  90(g). 
Municipal,  notice   ordinances,   20(a). 
Notice  of  its  own  records,  21(e),(g). 
Notice  of  members  of  supreme,  21(a). 
Notice  of  ordinances  on  review,  20(a)  ,(e)  ,(f). 
Notice  of  records  of  trial-court,  21(e),(f). 
Notice  of  repealed  ordinances,  20(b). 
Notice  of  rules  of  another  court,  21  (c). 
Notice  of  sessions  of  supreme,  21(a). 
Notice  of  term  of  common  pleas,  21(b),(c). 
Of  general  jurisdiction,  presumption,  409(a). 
Of  inferior  jurisdiction,  record,  409(a). 
Open  and  close  when  case  is  heard  by,  57(a). 
Reasonable-doubt  rule  on  error,  76(c). 
Reasonable  inference  on  error,  54(b). 
Tendency  of  evidential  facts  is  for,  90(h). 
To  consider  facts,  when,  90(f). 

Craps — 

Experts  on  game  of,  360(g). 

Credibility — 

Charge  to  jury,  91 (i). 

False  testimony,  effect  of,  91  (b). 

Falsus  in  uno,  effect  of,  91(c). 

Impeachment,  effect  of,  91(c). 

Of  witnesses,  province  of  jury,  91(a). 

Two  contradictory  witnesses,  91(h). 

Without  impeachment,  91(d). 

Creditors — 

Act  in  fraud  of,  6o(g),(h). 
Admission  of  fraud  against,  178(1). 
Intent  to  defraud,  rebuttal,   153(f). 


GENERAL    INDEX  647 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Crimes — 

Burden  of  proof,  76(a). 
Commission  of  other  crimes,  133. 
Conviction  of  infamous,  credibility,  306. 

evidence  in  rebuttal,  306(e),(f). 
Defense  of  good  faith,  160(a). 
Directing  a  verdict,  99 (i). 
Disclosing  motive  for  another  crime,  152(b). 
Door  opened  for  other,  133(g). 
Indirect  evidence,  llS(f). 
Negative  allegations,  effect  of,  60  (d). 
Offer  to  compound,  128(1). 
Reasonable-doubt  rule,  76(a). 
Rebuttal  must  repel,  disprove,  etc.,  126 (m). 
Sexual  crimes  with  consent,  133(i)   et  seq. 
Showing  intent,  burden  of  proof,  154(h). 
Showing  intent,  degree  of  proof,  154(h). 
Showing  intent,  reasonable-doubt,  76(f). 

Crops — 

Usage  as  to  away-going,  441(d). 

Cross-examination — 

As  to  employment  of  witness,  299(d). 

As  to  identity  of  joint  offenders,  299(b). 

As  to  letter,  299(e). 

As  to  pending  indictments,  304(c). 

As  to  pleading  guilty  to  assault,  304(b). 

As  to  quarrelsome  nature,  299(c). 

As  to  repair  of  sidewalk,   129(e). 

As  to  skill  of  physician,  299(a). 

As  to  slanderous  words,  299(f); 

As  to  term  in  penitentiary,  304(b). 

Bias  in  favor  of  a  party,  303(a),(b). 

Character,  304  (c) . 

Collateral  evidence  generally  binding,  305. 

Conviction  of  crime,  306. 

evidence   in  rebuttal,  306(e),(f). 
Defendant's,  on  contributory  negligence,  302(e). 
Denied,  statement  of  expected  proof,  301(c). 
Denial  of  right,  error,  301(c). 
Disparaging  questions,  304^ 
Door  opened  for  immaterial  matter,  302(c). 
Employe  of  party,  salary,  303(e). 
Illustration  of,  299. 


648  GENERAL    INDEX 

■    [Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Cross-examination — Continued. 

Impeachment,  contradictory  statements,  315  et  seq. 

Impeachment,  reputation,  311  et  seq. 

Inquiry  for  further  disclosures,  298 (a) . 

Interest  or  bias  not  bindinff,  305(a). 

Interruptions  by  counsel,  error,   301(b). 

Limits  of,  error,  301. 

Limits  of,  general  rules,  208(c),  302(a). 

Of  accomplice,  300(d). 

Of  accused,  300(a). 

as  to  a  different  story,  300(b). 

to  show  familiarity  with  firearms,  300(c). 
Of  defendant's  witnesses,  order,  302(g). 
Of  favorable  witness,  302(d). 
Of  medical  experts,  345. 
Of  witness  as  to  arrests,  304(b). 
Of  witness  expecting  immunity,  303(c),(d). 
Of  witnesses  of  accused,  order,  302(h). 
Of  witness  offered  money  to  testify,  o03(d),(e). 
On  defenses  by  defendant,  302(d). 
On  matters  not  relevant,  discretion,  304(a). 
On  preliminary  questions,  294(f). 
Prejudice  against  a  party,  303  (a), (b). 
Privilege  against  incrimination,  307. 
Recalling  for,  310(a). 
Religious  belief,  305(c). 
Same  questions  in   another  form,  302(c). 
Test  of  credibility.  208. 
To  elicit  suppressed  facts,  298(b). 
To  test  credibility,  discretion,  304(a). 
Violation  of  city  ordinance,  306(d). 

Crossing — 

Constructing  disputed,  res  gestae,   195(f). 
Custom  of  slackening  speed  at,  135(d). 
Similar  accidents  at  railway,  148(g),(h). 

Cubic  Yard — 

Of  loose  rock,  usage,  439 (i). 

Custom — 

Altering  legal  import  of  contract,  439-(c),(d).  • 

Contrary  to  law,  439. 

Defining  common  words,  439(b). 

Definition  of  ancient,  16S(b). 


GENERAL    INDEX  649 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Custom — C\)iitimK'tl. 

Exception  to  hearsay  rule,  16S(a). 

Expert  witnesses,  442. 

Knowledge  of,  440. 

Local  custom  not  noticed,  22(c). 

May  be  a  fi.xed  rule,   13o(a),(c). 

Must  not  contradict,  43S(b).  , 

M)toriety  of,  440. 

Of  giving  warning  admissible,  when,  135(b). 

Of  slackening  speed  at  crossing,  135(d). 

Of  using  guy-wire  as  support,  135(e). 

Performance  according  to,  441  (i). 

Pleading  of,  443. 

Proof  required,  443. 

Question  of  fact,  442(a). 

Reasonableness  of,  430  (k). 

To  explain  a   contract,  43S(b). 

To  rebut  negligence,  126(a). 

To  show  duties  of  employes,  135(c). 

To  show  non-use  of  highway,  126 (j). 


D 

Damages — 

Act  done  under  verbal  license,  156(g). 
Amendment  asking  for  punitive,  110(c). 
Breach  of  contract  for  insurance,  130 (m). 
Breach  of  contract  for  realty,   1.30(1). 
Good  faith  in   libel  to  mitigate,   158(c). 
Measure  of,  65(b) . 
Opinion  of,  property,  351. 
Probable  future  profits  as,  130(g). 
Slander,  good  faith  to  mitigate,  158(d). 

Death— 

I'resumption  of,  after  seven  years,  31(c). 
Presumption  of,  from  disappearance,  41(d) 

Debt^ 

Ability  of  defendant  to  pay,  barred,  1.34(1), 

Debtor — 

Examination    of,   admission,    170(c). 


650  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Declarations — 

Error  in  admitting,  charge,  198(f), 

In  aibsence  of  adverse  party,  200. 

Of  agent  defending  in  own  name,  202(d). 

Of  baggage-man,  204(a). 

Of  carrier's  agent,  204. 

Of  conductor  of  train,  204(c). 

Of  conspirators,  213. 

Of  corporate  agents,  207. 

Of  depositor  to  prove  trust,  430 (j). 

Of  doorkeeper  of  rink,  203(b). 

Of  driver,  203(c). 

Of  employes,  203  ( a),  (c). 

Of  grantors,  210. 

Of  grantor  to  prove  trust,  430(c). 

Of  husband  as  agent,  205(b),(c). 

Of  joint  parties,  212. 

Of  legal  representatives,  206. 

Of  legatee  to  prove  trust,  430 (i). 

Of  man  sent  to  inspect  goods,  202(c). 

Of  member  of  council,  208(e). 

Of  members  of  school  board,  208(f). 

Of  motorman,  204(d). 

Of  owner  of  land,  dower,  212(f). 

Of  owners  of  personalty,  211. 

Of  parties,   184(a). 

Of  partners,  209. 

Of  person  referred  to,  202(b). 

Of  policyholder,  205(b),(c). 

Of  public  agents,  208. 

Of  receiver,  206  {  a ) . 

Of  son  as  agent  of  father,  209(e). 

Of  spouse  as  agent,  205. 

Of  steamboat  captain,  204(b). 

Of  subordinate  lodge,  207(d). 

Of  testator,  153(g). 

Of  testator  to  prove  trust,  430 (i). 

Of  victim  of  rape,  198. 

Of  victim  of  sodomy,  198(f). 

Of  wife  as  agent,  205(a). 


Dedication — 

Declarations  of  grantor,  210(f). 


GENERAL    INDEX  651 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Deeds — 

Absolute,  may  be  shown  to  be  a  trust,  09  ( a ) ,  ( b ) . 

Acknowledgment  conclusive,  wlien,  40'2(a),(b). 

Acknowledgment,  denial  of,  68 (e). 

Agreement  not  mcrgi'd  into,  consideration,  428 (li)   et  seq. 

As  a  contract,  statute  of  frauds,  382(e). 

Attaching  restrictions  to,  68(e). 

Clear  evidence  to  vary  trust,  68(b). 

Consideration,  collateral  question,  428(c). 

Consideration  dispute^,  fraud,  428(1). 

Consideration  disputed,  fraud  of  creditors,  428(m),(n). 

Consideration,  operative  words  of  deed,  42S(()). 

Consideration,  parol  evidence,  419. 

Consideration,  parol  to  show  advancement,  428(d). 

Consideration,  parol  to  show  gift,  42S(f). 

Consideration,  parol  to  show  mutual  releases,  428 (e). 

Construction  of,  448. 

Destruction  of  record,  secondary  evidence,  403(f). 

Execution,  when  proved  by  certified  copy,  380(e). 

From  son  to  father,  presumption,  29(b). 

Intent  in  delivering,  325(b). 

Intent  to  deliver,   153(b). 

Lines  and  corners,  parol,  444(f),(g). 

Lost  or  destroyed,  73(a). 

clear  proof,  369(e)    et  seq. 

.copy  as  evidence,  369(h). 

loss,  question  for  court,  370(b). 

secondary  evidence,  369  (i). 
Of  gift,  419(c), (d). 
Of  lot  fourteen,  ambiguity,  444(d). 
Of  master,  record  destroyed,  403(g). 
Of  right-of-way,  construction,  449(d), (e). 
Order  of  evidence  in  proving  lost,  120(c). 
Parol  as  to  consideration,  428. 
Parol  evidence  excluded,  419. 
Parol  evidence,  general  rule,  428(b). 
Parol  evidence  to  identify  land,  456. 
Parol  that  consideration  was  love,  428(g). 
Parol  to  engraft  a  trust,  430. 
Parol  to  identify  grantee,  450(e). 
Parol  to  show  grantee  a  trustee,  431(d). 
Parol  to  show  it  to  be  a  mortgage,  436(a). 
Parol  to  show  it  to  be  voluntary,  430(f). 
Presumption  as  to  date,  29(d). 
Presumption  of  acceptance,  29(d). 
Proof  of  execution,  378(b). 


G52  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Deeds — Continued. 

Quantity  of  land,  parol,  403(h). 
Reservation  of  oil,  parol,  435(e). 
Reservations  in  parol,  419(f). 
Title  by  purchase,  419(b). 
To  member  of  family,  presumption,  29(a). 
To  stranger,  presvmiption,  29(a). 
Undue  influence,  proof,  68(d). 
Vendee  assuming  lien,  428  (i)    et  seq. 
Vendee  assuming  unexpired  lease,  42S(k). 
Written  admission  as  to  trust,  430(g). 

Defendant — 

Declarations  of  others,  200. 
Failure  to  testify,   264(c),(d). 
lias  bui'den  of  proof,  when,  47(a). 
Recognition  of,  corroboration,  200(g). 
Witness  against  himself,  error,  2r)4(c),(g). 
Witness  at  his  own   request,   264(c),(e). 

Defenses — 

Act  done  by  third  person,  51(g). 

Agent  without  authority,  51(e). 

Amendment  changing,  110. 

Anticipated,  burden  of  proof,  50(a). 

Breach  by  plaintiff,  51(c). 

Conspiracy  to  fabricate,  128  (k). 

Containing  no  new  matter,  51(a),(j). 

Contract  different  from  that  sued  on,  51(b). 

Contract  precluding  recovery,  51(d). 

Denial  or  equivalent,  46(a),  51(a),(j). 

Denying  title  in  plaintiff,  51  (i). 

Effect  of  "not  guilty,"  78(a). 

Error  in  ruling  on  one,  233(b). 

Fraud  in  assignment  of  title,  51(h). 

In  confession  and  avoidance,  80(b). 

Mere  denial,  51(a),(j). 

Of  drunkenness  and  burden,  78(c). 

Of  duress,  preponderance,   80(c). 

Of  insanity,  burden  of  proof,  81(a),(b). 

Preponderance  rule  in  two  or  more,  96(d). 

Special  contract  and  payment,  51(d). 

Tried  as  if  pleaded,  objection,  116(b). 

Want  of  consideration,  51(f). 


GENERAL    INDEX  653 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Delivery — 

Contract  silent  as  to  route,  ambiguity,  444(e). 
On  condition,  parol,  433. 

Demurrer — 

To  evidence,  involves  aLLUi^stexon,  99(d),(e). 

Denials — 

Admission   in  game  pleading,  5(a). 

And  neAV  matter  in  same  pleading,  49(a). 

Burden  of  proof  when   issue  is  narrowed,  51  (j). 

Calling  for  proof  not  proper,  1(b). 

Improper  denials,   1(b). 

Inconsistent  with  admissions,  3(b). 

In  reply,  new  matter,  117(a). 

Issues  made  by,  1(b). 

Necessary  to  material  allegations  only,  4(a). 

Necessary  to  new  matter  in  answer,  2(b). 

New  matter  in  reply,  1(a),  2(a). 

Of  attached  writing,  4(b). 

Of  legal  conclusion  not  necessary,  4(b). 

Want  of  belief  sufficient,  1(c). 

\Yant  of  knowledge  instead  of,   1(c). 

Depositions — 

Commissioner  to  take,  257(j). 
Exceptions  to,  256. 

answer  not  responsive',  256(f). 

competency  of  witness,  waiver,  256(c).  ^ 

filed  when,  256  ( a ) . 

filed  with  papers,  256(a). 

heard,  when,  256(b). 

in  writing,  256(a) . 
Incompetent  after  death  of  adverse  party,  2S0(b). 
In  criminal  cases,  255(h). 
May  be  read,  when,  255(e). 
May  be  used  when,  255(b). 
Not  introduced  in  evidence,  use  of,  250  (g). 
Of  plaintiff,  action  f(jr  personal  injuries,  255(f). 
Power  of  notary  public,  257. 
Showing  that  witness  is  sick,  255(c). 
lubscribed  testimony  used  as,  255(d), (g). 
Til<en  by  one,  used  by  other,  255 (i). 
Time  of  taking,  255(a). 
Used  by  legal  representatives,  when,  255(f). 


654  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Depositions — Cont  inued. 

Whose  may  be  taken,  255(a). 

Witness  refusing,  irrelevancy,  257  ( g ) ,  ( h ) . 

Witness  refusing  to  sign,  257  (i). 

Diagrams — 

Of  land  plats,  250 (k). 

Showing  acrobatic  feats,  250 (j). 

Dictograph — 

Explanation  and  demonstration,  251(d). 

Direct  Examination — 

After  memory  is  exhausted,  294(c). 

Fortifying  own  witness,  296. 

In  denying  statements,  294(e). 

Leading  questions,  discretion,  294(b). 

Leading  questions  permissible,  when,  294. 

Leading  questions,  rule,  294  ( a ) . 

Of  hostile  witness,  295. 

Eefreshing  memory,  297. 

To  assist  memory,  294(d). 

^Vhere  party  is  taken  by  surprise,  295(a). 

Ditch- 
Burden  of  proof  on  petitioners  for,  89 (c). 

Divorce — 

Corrofboration   of   party's   testimony,   258(f). 

Parties  may  testify,  269 (m). 

Proved  by  admission  of  party,  when,  412i(g). 

Docket — 

Of  justice,  impeachment,  407(g). 

Documentary  Evidence — 

Admission  of,  constitutional,  392(g). 
Meaning  of,  395(d). 

Documents — 

Abstracts   of,   secondary  evidence,  368. 
Admitted  for  one  purpose,  381(e). 
Entire  writings  admitted  by  agreement,  381(g). 
Evidence  of  genuineness,  122(a). 


GENERAL   INDEX  '  655 

[Numbers  are  to  sections;  letters  are  to  paragraphs.3 

Dogs — 

Disposition  of,  non-expert  witness,  362(b). 

Evidence  in  action  for  dog  bite,  156(f). 

Exemplary  damages  for  dog  bite,  156(f). 

Habit  of  attacking  sheep,  125  ( a ) . 

Had  bitten  others,  admissible,  when,  149(d). 

Mental  suffering  caused  by  bites  of,  159(a). 

Reckless  manner  of  keeping,  admissible,  when,  156(f). 

Dollar- 
Evidence  to  explain  value  of,  439(h). 

Domestic  Services — 

(See  HoU'Sekeeper.) 

Donor — 

Declarations  of,  after  gift,  210(h). 
Wealth  of,  considered,  when,  134(h). 

Draft^- 

By  cashier,  parol  evidence,   423(g). 

Drawer  may  show  that  he  was  surety,  437(e). 

Drawn  to  assign  a  claim,  parol,  423(h). 

Dredgers — 

Custom  as  to  burden  of  expense,  442(h). 

Drugs — 

Evidence  to  rebut  want  of  care  in  selling,   126 (k). 

Drunkenness — 

(See  Intoxication.) 

As  a  defense,  burden,  78(c). 

Duress — 

Defense  of,  burden  of  proof,  80(c). 

Duties — 

Of  train-crew  siiown  by  custom,  135(c). 

Duty— 

Presumption   of  performance  of,  .38(a). 


656  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Dying  Declarations — 

Admissible,  when,  170(h). 

Constitutional,  170(a). 

Cross-examination  on,  170(e). 

Exception  to  hearsay,  170(a). 

General  rule,  170(b). 

Hearing  on,  absence  of  jury,  170 (d). 

Impeacliment  of,  170(1). 

In  abortion  cases,  170(i). 

In  civil  actions,  170(j). 

Made  in  articulo  mortis,  l70(b),(c). 

Opinions  in,  effect  of,  170(k). 

Other  statements  made  part  of,  170(g). 

Precise  words  of,  170(g). 

Preliminary  examination,  170(d). 

Rebuttal  of,  170(e). 

Statements  inconsistent  with,   170(1). 

Substance  of,  170(g). 

Written  statement  of,  170(f). 


E 

Earnings — 

Of  a  party,  without  evidence  of,  98(c). 

Easement — 

Intent  to  abandon,   153(d). 

Ejection — 

From  street-car,   feelings,   159(b). 

Of  passenger,  res  gestae,  malice,  195(h),(i). 

Elections — 

Best  evidence  rule,  400  ( a ) . 
Certificate   required,  when,   400  (k). 
Destroyed  ballots,  secondary,  400(g). 
Impeachment  of  records,  400(c),(i). 
Judicial  notice,  25(g). 
Local  option.  400(h).(i). 
Marked  ballots  as  evidence,  400(f). 
Omissions  supplied  by  evidence,  400(b), (e). 
Poll-bnoks  prima  facie  evidence,  400(c). 
Presumption  of  regularity,  35(c),  36(b). 
Registers  of  electors,  residence,  400(j). 
Tally-sheets  prima  facie  evidence,  400(d). 


GENEFAL    INDEX  657 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Electric  Car — 

Speed  of,  opinion,  361(d). 

Elevator — 

Duor  at  prior  times  had  rebounded,  149(b). 

Employes — 

Custom  to  show  duties  of,   135(c),(e). 
Declarations  of,  203. 

Engineer — 

Of  train,  expert  witness,  359(b), (d). 

English  Words — 

Judicial  notice  of  meaning,  25(c). 

Entries — 

(See  Business  Entries.) 

On   appearance  docket  admissible,  when,  412(d). 

Xunc  pro  tunc,  evidence  required,  72(a). 

Error — 

Adding  an  immaterial  fact,  224. 

Admitting  evidence  for  wrong  reason,  223(d), 

Admitting  indecisive  evidence,  224. 

Clear  evidence  rule,  67(d). 

Cured  by  admitting  book  of  rules,  225(b). 

Cured  by  subsequent  explanation,  225(a). 

Decisive  instrument  in  evidence,  224(g). 

Evidence  adding  no  facts,  224(a). 

Evidence  benefiting  no  one,  224(a). 

Evidence  having  no  weight,  224(a),(c). 

Evidence  unnecessary,  224(h). 

Exclusion  of  evidence,  preliminary  statement,  227(c). 

Exclusion  of  evidence,  slight  weight,  227(a),  228(d). 

Exclusion  of  <ipiiiion,  227(1)). 

Kxelusion  of   ];ro|ier  evidence,  cliarge,  227(b). 

Finding  shows  evidence  not  prejudicial,  224(i). 

In  admission  cured  by  charge,  223(f). 

In  atlmission,  defective  coimt,  233(c). 

In  admission,  exception,  221(a). 

In  admission,  hearing  by  court,  223(e). 

In  admission   on  count,  acquittal,  233  (d). 

In  charge,  duty  of  reviewing  court,  64(e). 

In  charge,  effect  of,  04. 


658  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.J 

Error — Continued. 

In.  charge  must  be  prejudicial,  90  (m). 
Incompetent  evidence,  failure  of  proof,  224 (j/. 
Incompetent  evidence,  no  cause  oi  action,  224(k). 
In  exclusion,   admission  by  consent,  230(c). 

admissions,  232 (i). 

breach  of  contract,  231(c). 

case  already  proved,  228(a). 

confession  involimtary,  232(c). 

contributory  negligence,  228  (b% 

correct  verdict,  228(d). 

corroboration,  229. 

cross-examination,  237(d). 

cumulative,  229(a). 

cured  by  charge,  when,  159(a). 

deposition,  232(g). 

direct  examination,  237(c). 

evidence  of  value,  231(b). 

indecisive  evidence,  228(c). 

in  impeachment,  237(e). 

intent,  232(d). 

invited  error,  231. 

later  admission,  230. 

leading  court  into  it,  23]. 

letters,  232(e). 

payment,  cured,  227(e). 

prejudice,  232. 

record,  237(b). 

series  of  questions,  232(h). 

statement  of  expected  proof,  237(a). 

time  of  signing,  232(f). 
In  one  of  two  issues,  96(a). 
In  proving  fact,  admission,  226(b). 
In  proving  fact  not  in  dispute,  226(c), 
In  proving  matter  not  at  if.sue,  226(a). 
In  proving  matter  not  required,  226(a). 
In  refusing  to  re-open  case,  .5S(g). 
In  ruling  on  evidence  on  one  defense.  235('b). 
In  ruling  on  evidence  ()ii  one  issue,  233(a). 
In  ruling  on  open  and  r-lose.  .57(a). 
Interrogatories  to  detcrniinc  issue  decided,  96(b). 
Must  be  prejudicial,  220(d). 
Prejudicial  error  in  admitting.  223. 
Record  of  excluded  eviderce,  232,  237(b). 
Rule  where  there  are  two  issues,  96(b). 
When  parties  treat  fact  as  admitted,  226(d). 


GENERAL    INDEX  659 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Error — Continued. 

Where  competent  evidence  is  decisive,  224(d)    et  seq. 
Where  substantial  justice  is  done,  224(e). 
Wrong  reason  for  exclusion,  227(d). 

Estimates — 

On  public  work,  copies,  396(f). 

Estoppel — 

As  a  conclusive  presumption,  44(e). 
By  admissions,  177(c). 
Clear  evidence  to  prove,  74(c). 
To  deny  judicial  admission,  7(g). 

Evidence — 

Admission  of — 

altogether  incompetent,  234(c). 

exceptions  and  error,  221. 

facts  not  in  issue,  226. 

for  one  purpose — 

duty  of  counsel,  234(e),(h). 
duty  of  court,  234(e),(f). 

for  plaintiff  after  resting,  57(d). 

incompetent,  no  ground  of  objection,  234(d). 

indecisive  and  immaterial,  224. 

on  promise  to  show  competency,  120(i), 

on  promise  to  show  relevancy,  120 (i). 

out  of  order,  rebuttal  of,  58(d),(e). 

part  competent,  234(b). 

prejudice  shown,  how,  223. 

record  showing  evidence,  222. 

subsequent  explanation,  225. 
Argumentative  summing  up,  97(a). 
Burden  of  proof  never  shifts,  61  (a),(b)  ,(c) . 
Changing  rules  by  agreement,  13(c). 
Charge  on  tendency  of,  90 (i). 
Charge  stating  object  of,  97(f). 
Clear  and  convincing,  67  ot  seq. 
Confined  to  issues,  when,  119(d). 
Confined  to  point  in  issue,  106(a). 

objection,  106(b). 
Conflicting,  question  for  jury,  102(a). 
Corroborated  l)y  failure  to  rebut,  182(e). 
Corroborative,  excluded,  229. 


660  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Evidence — Continued. 

Cumulative — 

definition  of,  262  ( a ) . 

excluded  when,  229. 

placing  limits  upon,  262(a). 
Direct  and  indirect  evidence,  distinctions,  118(c). 
Direct,  defined,  118  ( a),  (b). 
Direct,  not  required  to  prove  gift,  75 (b). 
Directing  verdict  on  documentary,   103(c). 
Directing  verdict  when  no  conflict  in,  103(c). 
Exclusion  of  evidence — 

admission  later,  230. 

admissions,  232  ( i ) . 

corroborative  evidence,  229. 

cumulative  evidence,  229. 

deposition,  232(g). 

error  cured  by  charge,  227(b). 

evidence  of  pa^^nent,  remittitur,  227(e). 

evidence  of  slight  weight,  227(a). 

indecisive  and   immaterial,  228. 

intent,  232(d). 

invited  error,  231. 

leading  court  into  error,  231. 

letters,  232(e). 

not  in  preliminary  statement,  227(c). 

opinion  with  facts,  227(b). 

part  competent,  234(a). 

prejudice,  232. 

series  of  questions,  232(h). 

statement  of  expected  proof,  237. 

wrong  reason  for,  227(d). 
Explaining  a  fact,  124. 

Explaining  condition  of  woman  after  rape,  124(a). 
Explaining  inconsistent  letters,  124(c). 
Explaining  nature  of  business,  124(d). 
Extended  to   incidental  questions,   119(d). 
Facts  considered  without,  98. 
Failure  to  contradict,  93(h),(i),(j). 
Failure  to  offer,  inference,  182(a). 
Fair  summing  up,  97(a). 
Forms  of,  242(a). 
In  chief  closed,  when,  58(a),(c). 
In  chief  out  of  order,  58(a)  ,(b),(c). 

error  in  ruling,  58(b),(d). 

presumption  in  favor  of  ruling,  58 (b). 
Incorrect  summing  up,  97(b). 


GENERAL    INDEX  661 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Evidence — Continued. 

Indirect — 

(See  Circumstantial  Evidence.) 

circumstances  not  to  be  inferred,  118 (i). 
circumstances  to  be  proved,   118(c),(i). 
conclusiveness,  degree  of,  118(d). 
definition  of,  118(a), (b). 
difficult  to  fabricate,  118  (e). 
distinction  between  direct  and,  118(c). 
most  convincing,  when,   118(e), (f). 
use  of,  in  criminal  cases,  118(f). 
Indefinite  answer,  admissibility,  106(d). 
Indefinite  petition,  admissibility,  106(e),(f). 
In  dispute  is  for  jury,  102(c). 
In  negligence  cases,  104. 
In  rebuttal  begins,  when,  58(a). 
In  rebuttal  may  be  rebutted,  59(c). 
'     In  rebuttal  may  follow  order  of  issues,  59(b). 
In  rebuttal  to  show  inferior  mortgage,  59(a). 
Instruction  to  disregard — 

by  court  sua  s^wnte,  240(b). 
disobeyed  by  jury,  240(d). 
error  cured  by,  240(b),(c). 
evidence  admitted  on  promise,  240(e). 
evidence  introduced  out  of  order,  240(f). 
form,  of,  241. 

five  answers,  one  exception,  240. 
general  rule,  240  ( a ) . 
ground  not  stated,  240(f). 
hearsay,  240(h). 
motion  for,  238. 

prejudice  overcome,  240(c),(e). 
proper  evidence,  reversal,  240(1). 
refusal  of,  proper,  when,  240  (1<). 
similar  evidence  of  objector,  240(i). 
time  for  charge,  240(d). 
unresponsive  answers,  240  (k). 
when  improper,  reversal,  240(1). 
wrong  ground,  240(g). 
Introducing  a  fact,  12.3. 
Introducing  subject  of  value,  12.3  (a). 
In  will  contests  not  confined  to  issue,  100(]i). 
Judge  assuming  imcertainty  of,  03(f). 
Judge  cautioning  against  improper  use  of,  97(f). 
Must  correspond  with  allegations,  lOfi(a). 


662  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Evidence — Continued. 

Necessity  of,  to  answer  prima  facie  proof,  61(a). 

Need  not  be  stated  in  pleading,  106  (j). 

Objection  to,  on  defective  pleading,  113. 

Objection  to,  on  indefinite  petition,  113(c). 

Of  amount  due  on  account,  5(b). 

Of  amount  due  on  implied  contract,  5(b). 

Of  equal  weight  to  rebut,  when,  63(a), (b). 

OfTered  in  good  faith  out  of  order,  58(c). 

Oflfered  in  mass,  120(a). 

Offer  to  compromise  incompetent,  183(b). 

Offer  to  confess  judgment  incompetent,  183(f). 

Of  new  matter  under  a  denial,  116(a). 

Of  value  uncontradicted,  93(i). 

Of  value  of  services,  need  of,  98(c). 

Of  value  required,  when,  5(a). 

On   indefinite  allegation  of  consideration,   106(d). 

On   indefinite  allegation  of  medical  services,   106(e). 

On  indefinite  allegation  of  torts,  106(f). 

Open  and  close  of,  55(a). 

Order  of,  120(a),(b). 

Order  of,  arson,  120 (g). 

Order  of,  bribery,  120 (h). 

Order  of,  condition  precedent,  120(f). 

Order  of,  corpus  delicti.   120(g),(h). 

Order  of,  general  conspiracy,  r20(h). 

Order  of,  in  bastardy,  120(e). 

Order  of,  in  proving  lost  deed,  120(c). 

Order  of.  in  specific  performance,  120(d). 

Outside  issue  without  objection,  109  (d). 

Preponderance  of,  for  rebuttal,  when,  63(a),(b). 

Presumptions  affect  law  of,  26  ( e ) . 

Prima  facie  case  "shifts"  the  burden.  61  (a)  ,(b)  ,(c) . 

Primary — 

general  rule,  364(a). 

matters  collateral  to  writing,  365(a). 

trust  proved  without,  364(c). 
Probable,  juries  act  upon,  118(h). 
Proper  in  rebuttal,  59. 

Rejected,  later  becoming  admissible,  236(e). 
Relating  to  compromise  incompetent,   183(c). 
Re-opening  after  final  submission,  58(h). 
Re-opening  when  adverse  party  can  not  answer,  58(d'),(f). 
Required  to  rebut  presumption,  63(b). 
Ruled  out,  no  ground  stated,  240(f). 


GENERAL    INDEX  663 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Evidence — Cont  iiiued. 
Secondary — 

absence  of  writing,  366(a). 

account  books,  367(b). 

after  notice  to  produce,  371. 

books,  abstracts  of,  368. 

destroyed  writings,  369. 

documents,  abstracts  of,  368. 

loss,  question  for  court,  370. 

lost  writings,  369. 

notice,  reasonable,  372. 

notice  not  necessary,  when,  373. 

order  to  produce,  374 ( e ) . 

writings  beyond  jurisdiction,  367. 

writings  lost  or  destroyed,  369. 
Stronger  than  petition,  amendment,  110(h). 
Subjects  of.  not  judicially  noticed,  15(b). 
Substantially  different  from  allegations,  114(b). 
Sufficient  for  jury,  32(a). 
Supporting  an  inference,  12.5. 

Sustaining  verdict,  stated  as  a  presumption,  41(d). 
Tending  to  prove  all  essential  facts,  99(b). 

makes  a  jury  case,  99(f). 
To  overcome  presumption  of  innocence,  76(a). 
To  prove  contract  with  relative  for  services,  75 (c)   et  seq. 
To  prove  entire  issue,  119(a). 
To  prove  extension  of  time,  125(c). 
To  prove  want  of  care  in  hiring  infants,  125(d). 
To  rebut  consideration.  126(b). 
To  rebut  evidence  of  quality,  126(c). 
To  rebut  presumption  of  gift,  126(1). 
To  rebut  sales  at  low  price,  126  ( e) . 
To  rebut  that  of  consciousness,  126(h). 
To  rebut  undue  influence,  126(d). 
To  rebut  want  of  care  in  selling  drugs,  126 (k). 
Under  a  general  denial,  116(a). 
View  of  premises,  ditches,  247(c). 
Weight  of,  for  jury,  93(a),(b). 
Weight  of,  in  will  contest,  105(b),(c). 
Where  difTerent  minds  would  differ,  102(c),(d). 
Wide  range  of  inquiry,  when,  118(h). 

Evidential  Facts — 

Defined,  118(a). 
Judicially  noticed,  15(a). 
Remoteness  of,  130(c),(d). 


664  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Examination — 

(See  Direct  Exaininalioii  and  Cross-examination.) 
Of  adverse  party,  293. 

Excavation — 

Ko  lights  there  for  several  nights,  149(c). 
Similar  accidents  at  unguarded,   148 (e). 

Exception — 

Definition  of,  220(a). 

Form  of,  220(c). 

Ohject  of,  220(a). 

Presented  by  oral  argument,  220(e). 

To  depositions,  256. 

To  order  of  evidence,  221(c). 

To  questions  by  judge,  221(b). 

Exclamations — 

Contemporaneous,  meaning  of,  197(a). 
Involve  no  intellectual  process,   197(c). 
Of  a  boy  four  years  old,  197(b). 

Execution — 

Of  writings,  ancient  documents,  3S0.   " 
Of  writings,  proof,  378. 
Proof  when  not  directly  in  issue,  379(f). 
Records  prima  facie  evidence  of,  380 (e). 

Execution,  Writ  of — 

Exemplified  copies,  414(a). 
Originals,  414  (a  ) . 

Exemplary  Damages — 

Ability  of  defendant  to  pay,  134(b). 

Exhibits — 

Attached  to  pleading,  4(b). 

Experiments — 

In  presence  of  jury.  2ol. 

Outside  of  court.  2-52. 

Pistol  flash,  light  from,  2.12  (aK 

Running  a  train,  251 (a), (b),  252(b). 


GENERAL    INDEX  665 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

F 

Facts — 

Admitted  on  demurrer,  99  ( d ) ,  ( e ) . 

Amendment  conforming  pleading  to,  110. 

And  law  mixed,  90 (g). 

Burden  of  proof. of  single  fact,  54(a). 

Charge  emphasizing  certain,  97(c),(d). 

Charge  omitting  material,  95 (k). 

Charge  that  fact  is  fully  proved,  93(g). 

Charge  with  hypotlietical   statement  of,  95 (k). 

Conclusively  determined,  function  of  court,   103(a). 

Considered  without  evidence,  9S. 

Court  to  consider,  when,  90(f). 

Directing  verdict  on  conceded,  103(d). 

Effect  of,  is  for  jury,  90(h). 

Evidence  explaining.  124. 

Evidence  introducing,  123. 

Evidence  must  show  particular,  98(b). 

Evidence  need  not  show  general  facts,  98 (b). 

Evidential,  defined,  118  (a). 

Finding  of  ultimate,  for  jury,  90(h). 

Indisputable  for  jury.   102(c). 

Issue  of,  90(a) . 

Issue  of,  for  jury,  90(b). 

Judge  assuming,  93(d),(e). 

Judge  implying  existence  of,  93(f). 

Judge  stating  issues  of,  95(a). 

Jury  bound  by,  91  (j). 

Leading  up  to  murder,  195(a). 

Presumptions  arise  on,  26(d). 

Presumptions  not  always  warranted  by,  26(d). 

.Sufficiency  of,  is  for  jury,  90(h), (i). 

Tendency  of  evidential,  for  court,  90(h). 

To  apply  law  to,  is  for  court,  90(h). 

Ultimate,  defined,  118(a). 

Weight  of  evidence,  for  jury,  90(h). 

Witness  should  testify  to,  322(a). 

Failure  of  Proof — 

Amendment  may  be  refused,   114(b). 
Definition  of,  114(a). 
General  rules,   114(b). 

False  Arrest — 

.Mental   suffering,  evidence,  159(b). 


666  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

False  Claim — 

Presenting  to  officers,  conspiracy,  217(b). 

False  Imprisonment — 

Bad  character  of  plaintiff,  13S(a),(h). 

False  Statements — 

Burden  of  proof  as  defense  of,  47(f). 

Falsus  in  uno — 

Charge  on,  91 (c) . 
Province  of  court,  91(c). 

Federal  Laws — 

Judicially   noticed,   19(c). 

Fees — 

Of  attorney,  without  evidence,  98  (h). 

Fence — 

Issue  of  sufficiency,  opinion,   335(f). 

Financial  Ability — 

In  assault  and  battery,  134(d). 

In  breach  of  promise,  134(e). 

Of  defendant,  cross-examination,  134(c). 

Of  defendant  in  libel  or  slander,  1.34(c). 

Of  defendant,  professional  services,  134(f). 

Of  defendant,  punitive  damages,  134(b). 

Of  disinherited  son,  1.34(g). 

Of  donor  considered,  when,   134(h). 

Of  party  discussed  by  jury,  134(b). 

Shown  by  reputation,  when,   150(f). 

To  pay  barred  debt,  134 (i). 

Usually  too  remote,   134(a). 

Finding-  of  Facts — 

As  to  agreed  facts,  10(c),  . 

Fire — 

Issue  of  origin,  opinion,  335(g). 

Locomotive,  latitude  of  inquiry,  132(a),(b). 

Locomotive,  other  fires,  132(a). 

Locomotive,  sparks  from  other  engines,  132  ('b). 

Locomotive,  time  of  emitting  sparks,  132(b),(c). 

Proof  of,  l)y  locomotive,  104(g). 


GENERAL    INDEX  667 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Flat  Car- 
Repair  of,  after  accident,  129(c). 

Food- 
Chemical  analysis  of,  357(e). 

Foreign  Country — 

Laws  of,  must  be  proved,  19(c). 
Treaties  with,  judicially  noticed,  17(a). 

Foreign  Language — 

Admissions  in,  17S(h). 

Foreign  Law — 

Court,  duty  of,  394(1). 
Law  of  forum,  presumption,  43(1). 
Law  reports  as  evidence,  394(k),(l), 
Province  of  jury,  394(1). 
Question  of  fact,  394 (k). 

Foreign  Statutes — 

Authentication  of,  394(a). 

Construction  of,  394  (g)   et  seq. 

Facts,  pleaded  and  proved,  394(e)    et  seq. 

Matters  of  fact,  394(e)    et  seq. 

Printed  copies  as  evidence,  394(b), (d). 

Proved  by  expert,  394(c). 

Statutes  of  limitation,  fact,  394 (j). 

Forgery — 

Admitting  the  signing,  effect  of,  78(d). 
Declarations  of  conspirator,  216(d). 
Evidence  of  genuineness,  122(a). 
Note,  primary  evidence,  366(d). 
Proof  of,  witnesses,  379(g). 
Similar  offenses  to  show  intent,   154(d). 
Subsequent  conduct  to  prove,  128(j). 

Former  Acquittal — 

And  conviction,  406. 

Former  Adjudication — 

lOvidence  to  show  issues,  when.  405(b)   et  seq. 
Judgment  conclusive,  when,  405(e),(f).   . 
Pleading  former  judgment,  405(g). 
Record  of  former  trial,  405, 


668  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Former  Conviction — 

Bastardy  case,  406(c). 

Conspiracy  to  commit  several  crimes,  406(d). 

Identity  of  offense,  406  ( b ) . 

Issue  of  fact,  406  (  a  ) . 

Oral  evidence  admitted,  when,  406(b). 

Record  competent,  when,  406(a). 

Record  incompetent,  when,  406(d). 

Settlement  by  fraud,  406  (c). 

Former  Testimony — 

Competency  of  evidence  of,  176(g). 

Constitutionality  of  statute,  17.)(b),  176(i). 

In  malicious  prosecution,  176(c). 

Objection  to  proof  of,  176(a). 

Of  deceased  witness,  176(d),(i). 

Of  what  persons  admitted,  174(a). 

Of  witness  not  dead,  176(j). 

Proved  by  bill  of  exceptions,  174(a). 

Proved  'by  several  persons,   176(h). 

Proved  by  stenographic  notes.  175. 

Proved  by  witnesses,  176. 

Rule  of  proof  in  criminal  case,   176(i),(j). 

Substance  of,  176(d),(e). 

Validity  of  rule  of  proof,  176  (i). 

Witness,  competency  of,  176(f). 

Witness  may  read  his  notes  of,  176(b). 

Witness  must  qualify,  176(f). 

Words  of,  not  necessary,  176(d). 

Fraud — 

Against  creditors,  similar  frauds,  147  (k). 

Evidence  of,  by  grantee,  65 (j). 

Fraudulent  representations  to  others,  147  (i). 

Immaterial  allegation  in  action  for,  115(f). 

In  obtaining  release,  burden,  48(b). 

Of  similar  kind  to  show  knowledge,   147(1). 

Party  alleging,  burden,  30  (a). 

Preponderance  rule,  84(c). 

Freight-books — 

Entry  of  shipment  in,  391(b). 

Fruit-trees — 

Value  shown,  how,  352(c). 


GENERAL    INDEX  669 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Fugitive — 

Evidence  that  accused  was,  128(g). 

Funds — 

Knowledge  of  right  to,  146(d). 


Gambling — 

Preponderance  rule  in  action  for  losses,  84(f). 

Gambling-room — 

Knowledge  of,  shown  by  reputation,  150(d). 

Gas — 

Expert  witness  on,  357(c). 

General  Denial — 

Evidence  of  new  matter  under,   116(a). 
Evidence  that  disproves  admitted,  116(a). 
Not  proper  for  new  matter,   116(a). 

Geography — 

Cities  and  regions  judicially  noticed,  23(b). 
States  and  counties  judicially  noticed,  23(a),(d), 

Gift^ 

Causa  mortis,  clear  evidence,  75(a). 
Evidence  to  rebut  presumption  of,  126(1). 
Inter  vivos,  clear  evidence,  75(b). 
Inter  vivos,  direct  evidi'nce  not  required,  75(b). 
J'resumption  of,  2n(a),(b),  430(e). 
Presumption  that  it  was  accepted,  29(c). 

Good  Faith- 
Defense  of,  in  criminal  cases,   160(a). 
Information  acted   upon,  166(a). 

Goods — 

Possession  of  stolen,  41(1)). 

Government  License — 

Admission   Ijy   obtaining,    179(d). 


670  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs,] 

Governor — 

Notice  of  judicial  function  of,  16(e). 
Presumption  in  favor  of  findings  of,  35(e). 
Records  of — 

as  evidence,  396(b). 

parol  evidence  to  contradict,  396(b). 

Grade-crossing — 

Obstructed  view  at,  195(e). 

Grand  Jury — 

Disclosure  of  its  proceedings,  190(c). 
Minutes  of,  inspection,  375(g). 
Transcript  of  evidence  for  accused,  190(d). 

Grantor — 

Acts  and  declarations  of  grantor's  wife,  210(d). 
Declaration  of,  after  granting,  210(f)   et  seq.  « 

Declaration  of,  against  grantee,  210(c). 
Declaration  of,  before  title,  210(e). 
Declaration  of  deceased,  execution,  210(b). 

terms  of  parol  contract,  210(b). 
Declaration  of  mistake  in  deed,  210(d). 
Declaration  of,  to  prove  delivery,  210(a). 
Evidence  of  capacity  of,  65 (k). 
Pointing  out  boundaries,  res  gestae,  196(f). 

Growing  Wheat — 

Value,  expert,  353(b). 

Guaranty — 

Construction  of,  446(a). 
iSlirrounding  circumstances,  446(b). 

Guardian — 

Embezzler,  orders  of  probate,  413(a). 
Judicial  admissions  of,  8(a). 


H 

Habeas  corpus — 

Evidence  on  question  of  relevancy,  257(g),(h). 
Evidence  on,  refusing  to  answer,  257(g). 


GENERAL    INDEX  671 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Habi^- 

Ut  giving  warning  admissiljlo.  wlion,  135(b). 

Of  intoxication,  when  admitted,  150 (b). 

Of  persons,  when  irreguhir,  135(a). 

Of  persons,  when  regular,  13>5(a). 

Or  custom  may  be  fixed  rule,  135(a),(c). 

Handwriting — 

Acquaintance  with,  340. 
.  Circumstantial  evidence  to  prove  standards,  338(e). 
Comparison  of,  to  prove  identity,  127(b). 
Comparison  used  in  many  cases,  339. 
Cross-examination  of  witness  denying,  338(f). 
Forgery,  standards,  339(d),(e). 
Husband  proving  wife's,  340(a). 
Identity,  on  issue  of,  339(b). 
Marks  on  registration  lists,  339(c). 
Non-expert  witnesses,  340(a). 
Old  rule,  337(a). 
On  bank-paper,  340(b),(c). 
Proof  of  standards,  33S(b),(c). 
Qualifying  witnesses,  341(a). 
Standards  of  comparison,  338. 
Standards  sent  to  jury-room,  338  (g). 
Weight  of  evidence,  341(c),(d). 
Witnesses,  341. 

Hearsay — 

Accident  reports,  163(a). 

Account-books  of  third  party,  163(b). 

Admissions  as,   165(a). 

Admitted  without  exception,  221(a). 

Admitting  after  objection,  223(d). 

After-acquired  knowledge.  162(i). 

Agent's  statement,  162(b). 

Ancient  custom  an  exception,  168(a). 

Rook -account  as,  171(c). 

Business  entries  an  exception,  171. 

Cashier's  letter,  163(c). 

Certificate  of  w.'iglit,   163  (d). 

Commercial  publications,  exccpfion.   173. 

Confessions  as,   165(a). 

Contract  by  telephone,   165(b). 

Contradictory  statements,  165(a). 

Deceased's   exculpatory   statement,    162(d). 

Deceased's  statement  as  to   iiiconie,   l(i2(e). 


G72  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Hearsay — Continued. 
Definition  of,  162(a). 
Description  of  criminal,   ir)()(c). 
Doctor's  statement,  162(c). 
Dying  declarations,  an  exception,  170. 
Exceptions  to  rule,  164(a). 
Exclusion,  reason  for,  162(a). 
Former  testimony,  exception,  174  et  seq. 
Information  acted  upon,  arrest,  166. 
Information  from  third  person,  162(b). 
In  introducing  evidence,   162(g). 
In  refreshing  recollection,  162(g). 
Letter  of  cashier,   163(c). 
Limit  of  rule,  162(g)    et  seq. 
Matliematical  tables,  exception,   172. 
Newspaper   statements,   16.3(d). 
Notary's  statement  in  protest,  163(c). 
Nurse's  statement,  162(c). 
On  cross-examination,  162  (k). 
Pedigree  an  excej)ti()n,  1()7. 
Police-officer's  statement.   162(h). 
Preliminary   examination    on,   162  (j),   240(h). 
Reason  for  exclusion,  162(a). 
Reports  of  accidents,  163(a). 
Report  that  train  was  late,  166(b). 
Right  of  adverse  party  to  prevent,   162  (j). 
Rule,  exceptions  to,  164(a). 
Rule  limited,   162(g)    et  seq. 
Slanderous  words  ndmissil)]e.   16.5(a). 
Statements  again^t  pecuniary  interest,   169. 
Statements  of  an  agent,  162  (hi. 
Statistical  tables,  exception,   172. 
Telephone  conversation,   16o(b). 
Third  person's  stalement.  162(1)). 
To  rebut  inference  of  negligence.   Ifi6(b). 
Wife's  statement  ti)  husband,  162(f). 
Witness  had  heard,  162(g). 
Words   in    issue  not  hearsay,   16.5(a). 

Highway — 

Custom  t(i  shnw  the  non-use  of.  126(j). 

History — 

Current  bistory  not  noticed,  22(c). 

Matters  long  since  transacted  are  noticed,  22(a), (b). 


GENERAL    INDEX  673 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Homicide — 

Accused's  declarations   afterward,   197(d). 
Acts   and  declarations    of  conspirators,   215. 
Coroner's  inquest  not  evidence,  334(d). 
Corpus  delicti   in,   193(b),(d). 
Declarations  of  deceased   afterward,   197(g). 
Defense  of  delirium  tremens,  evidence,   ]Gl(c). 
Threats  just  before  attack,  res  gestae,  196(6). 


Horses — 

Condition  of,  experts,  302(3). 

Ilahits  of,  experts,  362(a). 

Motive  in  injuring,  152(c). 

Record  of  speed  of,  172(c). 

Value  of,  juror's  knowledge  of,  98 (g). 


Horse  Stealing- — 

Trior  stealing  of  money,  intent,  154(g), 


Hospital — 

Itcports  lequired  by  rules,  evidence,  399(c), 


House — 

Condition  of  house   in   suit  for  services,  124 (b), 


Housekeeper — 

Admission  of  value  of  services,  178(c), 
May  .-ihow  condition  of  liouse,  124(b). 
()|)ini(Jii  (in   \nlu<'  nf  .services,  355(b). 
Time  of  contract,  125(e). 
\alue  of  services,  witness,  355(a). 


House  of  111  Fame — 

I'roving   rciiiitiitiuii   of,    i-tr(a),(b) 


Husband — 

Character  of,  unlawful  marriage  license,  143(a), 


574  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Husband  and  Wife- 
Privileged  communications — 

act  may  not  be  prejudicial,  269(g). 

applies  to  certain  acts,  269  ( a ) . 

as  to  common-law  marriage,  269  ( 1 ) . 

competent  when  third  person  present,  269(a). 

conversation  of,  binding  others,  200(d)    et  seq. 

criminal  cases,  exceptions,  270(a). 

cruelty  to  children,  270(a). 

failure  to  provide,  270  ( a ) . 

husband's  robbery  of  wife,  270(b)   . 

husband's  testimony  for  co-defendant,  269(j). 

husband's  testimony  on  presence  of  another,  269(f). 

husband's  testimony  to  slander  of  wife,  269 (i). 

in  action  for  divorce,  269  (m). 

letters  in  possession  of  third  person,  270(d),(e). 

perjury  of  husband,  wife  a  witness,  270(g). 

personal  injuries  by  one  to  other,  270(a). 

third  person  present,  question  for  court,  269(e). 

third  person  present  since  deceased,  269(f). 

trial  for  crime,  cross-examination  of  spouse,  270(c). 

whereabouts  of  either,  270(a). 

widow  against  co-maker  of  husband,  269(h). 

wife  may  testify,  exceptions,  269(c). 

wife  may  testify  to  husband's  alibi,  270(b). 

wife's  declaration  in   dreams,  270 (k). 

wife's  letters  to  husband,  269(d). 

wife's  testimony   as  to  non-access  of  husband,  270(f). 

wife's  testimony  on  presence  of  another,  269(f). 

woman  not  wife  as  a  witness,  270(h). 

written  papers  from  one  to  other,  269(b). 

Hypothetical  Questions — 

Assuming  facts,  331. 

Based  on  best  evidence,  330(b). 

Based  on  immaterial  evidence,  331(f). 

Based  on  supported  facts,  330(c). 

Charge  as  to  value  of  testimony,  331(c)   et  seq. 

Error  in  assuming  facts,  331. 

General  rule,  330(a). 

Irregular  form,  error,  331(g). 

Not  necessary,  when,  330(e). 

Opinion  from  testimony,  330(f). 

Proving  facts  by  preponderance,  331(h). 

Re-examining  witness  to  lay   ground   for,  330(d). 


GENERAL    INDEX  675 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Hypothetical  Questions — Continued. 

Value  of  testimony,  charge,  331(c)   et  6eq. 
\Yeight  of  testimony,  331(e)   et  seq. 
When  witness  knows  no  facts,  330(e). 


I 

Identity — 

And  alibi,  127(g). 

Comparison  of  writing  to  prove,   127(b).  ^ 

Concurrence  of  characteristics,  127(a). 

Memory  of  personal  appearance,   127  (a). 

Of  burglar  shown  by  bloodhound,  127(e). 

Of  father  of  bastard,  how  proved,  127(d). 

Of  person  meant  by  libel,  127(h). 

Of  person,  non-expert  witness,  326(c). 

Of  persons  who  published  libel,  127(h). 

Of  person  talking  over  telephone,  165(c). 

Of  person  writing  letter,  127(c). 

Proved  by  accounting  for  others,  127(f). 

Same  name,  127(a). 

Illegitimacy — 

Proof  by  record,  when,  413(c). 

t 

Impeachment — 

By  conduct,  failure  to  speak,  319. 

By  inconsistent  conduct,  315(d). 

By  showing  reputation  for  truth,  311  et  seq. 

By  stenographic  notes,  175(c). 

Calling  adverse  party  to  lay  foundation,  320(a). 

Contradictory  statements,  315. 

as  hearsay,  165(a). 

by  subscri])ing  witness,  318(d),(e). 

confining   impeachment  within   foundation,  315(c). 

cross-examination  as  to,  320(c). 

cross-examination  of  impeaching  witness.  320(f). 

explanation  of,  320(d). 

expressions  of  opinion,  316(a). 

impeaching  witness  may  be  impeached,  320(h). 

in  deposition,  317(c). 

in  former  testimony,  317. 

in  letter,  318(c). 

in  writing,  318 ( a), (b). 

laying  foundation,  315(a). 


676  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Impeachment — Continued. 

Contradictory  statements,  315. 

leading  questions,  320 (bj. 

opinions  based  on  knowledge,  316(b). 

opinion  with  facts,  316(a). 

order  of  evidence,  320. 

questions  in  laying  foundation,  315(b). 

re-examination   as  to,  320(g). 

rehabilitation  of  witness,  321. 

stenograjiher  proving,  317(a),(b). 

time  for  impeaching  evidence,  320(e). 

witness,  rehabilitation,  321. 
Credibility,  effect  on,  91(c). 

Cross-examination  of  impeaching  witness,  312(f). 
For  intellectual  weakness,   3  ]  2  ( d ) ,  ( e ) . 
Leading  questions  in  denying  statements,  294(e). 
Of  dying  declarations,  170(1). 
Of  own  witness  not  allowed,  295. 
Of  testimony  taken  before  a  master,  31-1  (c). 
Of  witness  called  in  rebuttal,  31-l(a). 
Of  witness  making  affidavit,  314(b). 
Rehabilitation,  321. 
Want  of  ordinary  intelligence,  312(d), (e). 

Implied  Contract — 

Evidence  of  amount  d>ie,  5(b). 

Impressions — 

Witness  may  state,  322(b).(c). 

Incest — 

Other  sexual  crimes  as  evidence,   133 (i). 

Incrimination — 

Asked  for  l:)y  counsel,  307  ( d ) . 
Privilege  against,  307. 
Privilege  against,  by  party,  307(f). 
Privilege  allowed  by  judge,  307(b),(c). 
Privilege  not  claimed,  308(e). 

Indecent  Assault — 

Character  of  defendant,  136(b). 
Character  of  plaintiff,  136(b). 

Indemnity — 

Procuring,  on  threatened   claim,    130 (n). 


GENERAL    INDEX  677 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Indorsement — 

Not  to  transfer  title,  451(b),(c). 
Parol  evidence  excluded,  424. 
Relation  of  parties,  451(b),(c). 
Waiving  protest,  parol  to  vary,  424  ( e ) . 

Infants — 

Evidence  to  prove  ■want  of  care  in  hiring,  r25(d). 

Inference — 

Burden  of  proof  to  rebut,  54(b). 

Drawn  from  inference,  118 (j). 

Evidence   supporting,   125. 

Presumptions  not  always  based  on,  2(5 (c). 

Rebutting,  126. 

Sustaining  reasonable   inferences,   54(b). 

Injunction — 

Burden  of  proof,  88(a),(b). 

Burden  on  motion  to  dissolve,  89(c). 

Burden  on  suit  to  enjoin  assessments,  S9(d),(e). 

Evidence  on  motion  to  dissolve,  254(f). 

Injuries — 

Opinion  on  permanency  of,  343(b),(c). 

Innocence — 

Charge  on  presumption  of,  27(b). 

Evidence  to   overcome  presumption   of,   7fi(a), 

Presumption  of,  27. 

Presumption  of,  and  burden  of  proof,  27(a). 

Presumption  of,  and  of  continuance,  42(a). 

Presumption  of,  not  based  on  inference,  2(5(c),(d). 

Insane  Person — 

Judicial  admissions  of,  8(a). 

Insanity — 

As  a  defense  to  murder,  burden  <if  jiroof,  81(b). 
At  a  former  time  and  presumptions,  42(f). 
Burden  of  proof  of  defense  of,  81(a). 
Burden  of  proof  on   applicant,  when.  Sl(g). 
Defense  of,  open  and  close,  81(f). 
Error  in  charge  on  preponderance    SI  id). 
Former  adjudication  of,   as  evidence,  41.'i(li). 


678  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Insanity — Continued. 

Insanity  of  testator's  father,  125(h). 
Of  witness,  263(b)   et  seq. 
Presumption  of  continuance  of,  42{e),(f). 
Prior  insanity  may  be  shown,  125(h). 
"shifting"  of  burden,  81(e). 

Inspection — 

Of  material  objects  by  jurj-,  243(a). 

Inspector — 

Declarations  of,  as  agent,  202(c). 

Instruction — 

(See  Charge.) 

Insulator — 

Comparing  one  with  others,  126  (c). 

Insurance — 

Company's  defense  on  cross-examination,  302(f). 
Custom  among  insurers,  notoriety,  440(b). 
Damages  for  breach  of  contract  for,  130(m). 
False  application  for,  75(h). 
Knowledge  of  other,  146 (i). 
Opinions  which  are  excluded,  323(f). 
Profits  of  policy  paying  a  loan,  451  (g) . 
Verbal  contract  of,  74(a). 

Insurance  Policy — 

Clear  evidence  to  reform,  70(b). 

Construction  of,  455  ( a ) . 

Custom  contradicting,  not  admissible,  438(c). 

Custom  to  keep  explosives  in  stock,  438(d). 

Evidence  to  correct  a  mistake,  420(b). 

Parol  evidence  excluded,  420. 

Subject-matter,  parol,  455. 

Usages  of  trades,  as  evidence,  441(c). 

Intent — 

Accused  denying  intent,  effect  of,  78(b). 
All  facts  bearing  on,  admission,  153 (i). 
And   reasonable-doubt  rule,   76(e),(f). 
Assault,  intent  to  rape,  how  shown,  154(b). 
As  to  term  of  contract,  153  (t). 


GENERAL    INDEX  679 

[Numbers  are  to  sections;  letters  are  to  paragraphs.} 
Intent — Continued. 

As  to  trade  fixtures,    153(c). 

Charge  on  intent  to  kill,  155(d). 

Degree  of  proof  of  similar  crimes,  154(h). 

Evidence  rebutting  intent  in  abortion,   160(b). 

Excusing  circumstances,  160(a). 

General  rules,  153(a),   154 (a). 

Ignorance  of  the  facts,   160(a). 

In  assault  Avith  intent  to  rob,  154(f). 

In  cutting  timber,  prior  offense,  154(e). 

In  forgery,  similar  offenses,   154(d). 

In  injuring  horses,  152(c). 

In   shooting,   intoxication,    161(c). 

In  taking  material,  rebuttal,  160(c). 

Of  a  party — 

as  to  alteration  of  note,  32i5(a). 

as  to  defrauding  creditor,  325(b). 

as  to  delivery  of  deed,  325(b). 

as  to  signing  a  note,  325(d). 

general  rule,  325(a),(b). 

inadmissible  when,  325(c). 
Of   natural   consequences  of  act,    155(a),(d). 
Presumption  of,  32(c). 
Proving  part  of  facts  bearing  on,   153 (i). 
Rebutted  by  intoxication,   161(a). 
Similar  offenses,  burden,  154(h). 
Similar  offenses  to  prove   intent  to  brib'e,   154 (c). 
Stealing  horse,  prior  stealing  of  money,   154(g). 
To  abandon  an  easement,  153(d). 
To  defraud,  rebuttal  of,  153(f). 
To  defraud,  similar  offenses,  154(d). 
To  deliver  deed,  153(b). 
To  kill,  deadly  weapon,  explained,   155(c). 
To  kill,  deadly  weapon,  unexplained,   155(b). 
To  kill,  shown  by  what  accused  does  and  says,   155(a).    ' 
To  revoke  will,  declarations,  153(h). 
Want  of  guilty  intent,  160 (a). 

Interpreter — 

Admissions  tliniugli,  178(g). 

Interrogatories — 

Annexed    to    pleading,   evidence,   412(c). 

Conclusion  of  law,  90(e). 

Explanation  to  jury,  90(e). 

Finding  of  fact,  90(e). 

To  determine   issue  decided,   06(b). 


680  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Intoxication — 

As  a  defense,  161. 

Declaration  to  show  efl'ect  of,  lS5(c). 

Defense  of  delirium  tremens,  evidence,  161(c). 

Defense  to  passing  counterfeit,   161(e). 

Defense  to  perjury,  161(d). 

Habit  of,  when  admitted,  150(b). 

In  second-degree  murder,   161(b). 

In  shooting  with  intent  to  wound,  161(c). 

Eebutting  guilty   intent,   161(a). 

Rebutting  guilty  knowledge,  161(a). 

Introduction — 

And  objection,  234. 

Inventory — 

Of  an  estate,  tax  case,  206(b). 

Irregularity — 

Will  not  be  presumed,  39(a). 

Issues — 

Character  a  part  of,   136(d). 

Charge  applicable  to  evidence  and,  95(f). 

Definition  of,  90(a). 

Error  in  one  of  two,  96  ( a ) ,  ( b ) . 

Error  in  ruling  on  one,  233(a). 

Evidence  confined  to  point  in  issue,  106(a). 

objection,    106(b). 
Grouping  and  summarizing,  95(c). 
Made  by  denials,  1(b). 
Made  by  plea  of  "not  guilty,"  76(c). 
Narrower  than  general  issue,  burden  of  proof,  51  (j). 
Of  fact,  1(a),  90(a). 
Of  law,  90(a). 
Open  and  close.  55(c). 
Raised  by  denial,   1(a),   116(a). 
Statement  of.  95  ( a ) . 
Substance  of,  must  be  proved,   115(a). 
Substance  of,  open  and  close,  55(b). 
Verdict  on  several,  error  in  one,  233. 
Where  there  is  no  evidence,  95(g). 
Words  in  issue  not  hearsav,  165(a). 


GENERAL    INDEX  681 

[Numbers  are  to  sections;  letters  are  to  paragraphs  "J 

J 

Joint  Legatees — 

Declaration  uf  one,  212(b). 

Joint  Parties — 

Admission  of  one,  212(a). 

Journal  Entry — 

Ambiguous,  explanation  of,  408(g). 

Binding  on  reviewing  court,  prohibition,  409(g). 

OParol  to  vary,  408(b). 

Journals  (Legislative) — 

As  evidence  of  acts,  393(c)    et  eeq. 
Impeachment  of,  393(e)    et  seq. 
Judicially  noticed,  18(a). 
Xot  noticed  when  irregular,   lS(b). 

Judge — 

Assuming  a  fact,  93(d),(e). 

Assuming  uncertainty  of  evidence,  93(f). 

Cliarging  that  proof  is  insufficient,  93(b). 

Discretion   of,   as   to   order,   221(c). 

Disparaging  reports  of  former  testimony,  91(g). 

Disparaging  testimony  of  witnesses,  91(f). 

Duty  to  state  issues  of  fact,  95  ( a ) . 

Excepting  to  questions  by,  221(b). 

Facts  conclusively  determined  is  for,    103(a). 

Former  testimony,  reports  of,  91(g). 

Imply  existence  of  facts,  93(f). 

Improper  use  of  evidence,  charge,  97(f). 

Imputing  improper  motives  to  witnesses,  91(f). 

Interfering  with  examination,  221(b). 

Intimation  of  concealment,  93(c). 

May  order  physical  examination,  249. 

Opinion  on  abandoned  women,  92(b). 

Opinion  on  a  certain  class  of  witnesses,  92(a). 

Eight  to  guide  trial,  221(b). 

Statements   indicating  opinion   of,   91(e). 

Stating  allegations  admitted,  95(3). 

Stating  allegations  denied,  95(a). 

Stating  an  admission  in  charge,  92(f). 

Stating  object  of  certain  evidence,  97(f). 

Stating  recollection  of  testiinony,  97(e). 

Stating  substance  of  evidence,  93 (j). 

To  consider  facts,  when,  90(f). 


682  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Judgment — 

By  default,  6(a), 

as  an  admission,  181(d). 

minus  a  counterclaim,  6(c),(e). 

minus  a  set-off,  6(b). 

when  there  is  a  defense,  6(d),(e). 
Considered  in  evidence,  when,  381(b). 
From  another   state,   jurisdiction,   409. 
Jurisdiction  in  action  on,  409(d)    et  seq. 
Jurisdiction  of  parties  presumed,  43(c). 
Offer  to  confess,  13(b),  183(f). 
Parol  to  identify  parties,  408(h). 
Parol  to  vary,  408(a),  409(d). 

Judicial  Admissions — 

Admitting  specifically,  2(a). 

After  judgment  conclusive,  7(g). 

Amending,   7(b). 

As  to  abstract  of  title,  12(b). 

As  to  confessing  judgment,  13(b). 

Authority  of  attorney,  14(a). 

Binding  on  court  and  jury,  7(h). 

Binding,  when,  7. 

By  attorney,  construction  of,  14(b). 

By  attorney  in  argument,   14(c). 

By  county  auditor,  8(b). 

By  mistake  not  conclusive,  7(g),  S(b). 

Can  not  be  repudiated,   7(a). 

Can  not  be  retracted,  7(b). 

Construed  with  other  admissions,  12(a). 

Denials  in  same  pleading,  3(a). 

Estoppel  to  deny,  7(g). 

Failure  to  deny,  2(a). 

For  special  purpose,   12  (c). 

In  action  for  penalty,  9(c). 

In  another  case,  9. 

Inconsistent  with  denial,  3(b). 

In  criminal  action,  9(c). 

In  force  after  amendment,  7  (b),(c),(d). 

Made,  how,  2(a). 

May  be  oral,  13(a). 

Methods  of  making,  10(a). 

No  denial  in  answer,  2(a). 

No  denial  in  reply,  2(a). 

Not  material  when  made,  9(b). 

Of  attorney  for  one  in  prison,  8(a). 


GENERAL    INDEX  683 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Judicial  Admissions — Continued. 

Of  guardian  of  infant,  S(a). 
Of  person  of  unsound  mind,  8(a). 
Of  public  officers,  8(b). 
Of  receiver  binding,  7(e). 
That  party  is  trustee,  9(a). 

Judicial  Notice — 

•     Arithmetic,  common  studies,  25(e). 

As  to  street  railroads  prior  to  1S51,  16(f). 

Blood-hounds,  use  of,  25(b). 

Bonds,  sale  at  premium,  25(f). 

Building  contract,  16(g). 

Charter  of  city,  17(c). 

Christian  science,  nature  of,  24(c). 

Cincinnati,  some  history  of,  25(f). 

City  courts  notice  ordinances.  20(a). 

City  is  in  a  certain  cotinty,  23(e). 

Commercial  relations  of  cities,  23(b). 

Common  knowledge,  15(a),  25. 

Consumption    is  curable,  not  noticed,  24(c). 

County  is  witliin  state.  23  (d). 

Court-rules  of  another  court.  21(c). 

Court's  notice  of  its  own  records,  21(e),(g). 

Doctrine  applied  outside  of  evidence,  16(a). 

Election  and  term  of  councilmen,  17(c). 

Election  under  local  option  law,  25(g). 

English  words,  25  ( c ) . 

Facts  in  contempt  case,  21(d). 

Facts  noticed  need  no  proof,   15(a). 

Facts  of  recent  occurrence,  22(c). 

Facts  of  science  and  art,  24. 

Foreign  laws  not  noticed,  10(c). 

Foreman  of  grand  jury,  21(h). 

General  and  public  statutes,  19(a). 

Geography  of  cities,  23(b). 

Geography  of  states,  23(a).(d). 

History  of  old  matters,  22(a),(b). 

History  of  statutes,  16(a). 

In  construing  a  statute,  16. 

Journals  of  legislature,  lS(a),(b). 

Laws  of  another  state,  19(c). 

Legislative  journals,  18(a)  (b). 

Local  custom  not  noticed,  22(c). 

Map  of  city  of  Toledo.  23(c). 

Mercantile  agencies,  business  of,  25(e). 


684  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Judicial  Notice — Continued. 

Nature,  course  of,  24(b). 

Need  not  be  jjlead,  4(b). 

Not  evidence,  15(b). 

Of  city  courts,   17(d). 

Of  common-pleas  judges,  21(b). 

Of  corporate  charter,  19(c). 

Of  evidential  facts,  15(a). 

Of  federal  laws,  19(c). 

Of  governor's  functions,  16(e). 

Of  members  of  supreme  court,  21(a). 

Of  municipal  corporations,   17(b). 

Of  official   proclamations.   17(a). 

Of  operation  of  statute,  16(d). 

Of  ordinances  by  reviewing  courts,  20(a)  ,(e) ,  if ) . 

Of  population  of  cities,  17(d). 

Of  public  documents,  17(a). 

Of   public  prosecutor,  21(h). 

Of  sessions  of  supreme  court,  21(a). 

Of  ultimate  facts,  15(a). 

Oil-well  drilling,  nature  of,  25(a). 

Oleomargarine,  ajjpearance   of,  24(c). 

Ordinance  not  in   record,  20(d). 

Ordinance  on   review,  20(c)  ,(d)  ,(e) . 

Photography,  progress  of,  24(a). 

'"Policy,"  meaning  of,  25(c). 

Practical  construction   of   statute,   16(b),(c). 

Private  statutes  not  noticed,  19(a). 

Public  corporate  charter,  19(d). 

Eeal  estate,  rise  in  value  of,  25(f). 

Records  of  trial-court  on  re'^'^w,  21(e), (f). 

Repealed  ordinances,  20(b). 

River  and  creek  of  same  name,  23(b). 

Seminole  treaty  of  1S32,  22(b). 

Seminole  war,  22(b). 

"Sinking-fund,"  meaning  of,  25(c). 

Soldiers  Home  Act,  19(b). 

Street-cars,  operation  of,  25(d). 

S^lbjects  of  evidence,  15(b). 

Sunset,  time  of,  24(b). 

Term   of   common-pleas   court,  21(b),(c). 

Township  as  fractional.  23(c). 

Township,  location  of,  23(f). 

Treaties  with  foreign  powers,  17(a). 

Water-works  of  Cincinnati,  25(f). 


GENERAL    INDEX  685 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Jurisdiction — 

111  arlioii  on  judgment,  409(d)  et  seq. 
Of  courts  may  be  questioned,  409 (a). 
Prerequisites  of,  409(c). 
Presumed,  43(c),(d). 
When  finding  imports  notice,  409(b). 

Juror — 

As  a  witness,  9S  ( a ) . 
Common  knowledge  of,  9S(d). 
Knowledge  of  general  facts,  98(b). 
Knowledge  of  particular  facts,  98(b). 
Knowledge  of,  value  of  horse,  98(g). 
Knowledge  of  value  of  property,  98(e). 

Jury- 
Acts  upon  probable  evidence,  118(h). 
Affidavits  not  used,  trials  by,  254(b). 
Bound  by  facts,  91  (j). 
Charge  to,  must  be  prejudicial,  90 (m). 
Conflicting  evidence  is  question  for,   102(a). 
Corroboration  of  witnesses  is  for,  92(e). 
Credibility  of  witnesses  is  for,  91  (a). 
Determines  questions  of  fact,  90(b). 
Facts  conclusively  determined,  K)3(b). 
Facts  in  dispute  are  for,  102(c). 
Finding  of  ultimate  facts  for,  90(h). 
Inspecting  material  objects,  243(a). 
Law  and  fact  mixed,  90(g). 
Misconduct,  financial   ability,  134(b). 
Physical  examination   in  presence  of,  249(f). 
Province  of,  expert  evidence,  329. 
Questions  of  law  submitted,  90(1). 
Reading  law-books  to,  90(d). 
Reading  pleadings  to,  95(a),(b). 
Rebuttal  of  prima  facie  case  for,  63(a). 
Receives  law  from  court,  90(c). 
Sustaining  of  burden  for,  102(e). 
View  of  premises,  24.5  et  seq. 
Weight  of  character  evidence,   145(b),(c). 
Weight  of  evidential   facts,  90(h). 
Witnesses,  opinion,  33.5. 

Justice — 

I'lca   of  guilty   sli.iwn.   liow.   415(b). 
Transcript  of  dockft,  .videiu-e,  415(a). 


686  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Justification — 

In  making  arrest,  burden,  47(c). 
Of  discharge,  burden,  47 (d). 
Open  and  close,  56(a). 


Knife— 

Exhibited  as  weapon,  244(c),(d). 

Knowledge — 

By  showing  similar  crime,  passing  counterfeit,   147(c) 

Counterfeits  found  upon  an  associate,  147(d). 

General  rule  on  proof  of,   146(a). 

Inquiry  and  no  answer  is  not,  146 (k). 

In  receiving  stolen  goods,  how  proved,  147(m),(n). 

In  sale  of  skimmed  milk,  147  (o). 

May  be  shown  by  reputation,  150. 

Of  counterfeit  notes,  possession  of,   147(b). 

Of  falsity  of  representations,  146  ( e ) ,  ( g ) ,  147  ( j ) . 

Of  falsity  of  testimony,   146(c). 

Of  financial  condition  by  reputation,  150(f). 

Of  forgery,  showing  other  forgeries,   147(e),(f). 

Of  fraud  in  procuring  signature,   147(g). 

Of  gaming  place  shown  by  reputation,  150(d). 

Of  general  defect,  146 (m). 

Of  habit  shown  by  reputation,  when,  150(b), (c). 

Of  incompetency  shown  by  reputation,   150(e). 

Of  neighbor's  traits,  146(h). 

Of  one  defect  may  be  notice  of  another,  146(m),(n). 

Of  other  insurance,  146  (i). 

Of  particular  defect,  146 (m). 

Of  right  to  funds,  146(d). 

Proved  by  showing  similar  crimes.   147(a). 

Kebutted  by  intoxication,  161(a). 

Shown  by  similar  accidents,  148(a). 

That  bank-notes  were  forged,  146(f). 

That  money  was  counterfeit,  146(f). 

Known  Gambler — 

Papers  on  desk  at  time  of  arrest.  264(h). 


GENERAL   INDEX  687 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

L 

Land — 

Quantity  of,  shown  by  witness,  403(h). 

Land  Contract — 

Parol  evidence  to  identify  property,  45«(e). 
Parol  to  show  subsequent  agreement,  434(d). 

Landlord  and  Tenant — 

Accounts  between  them,  389(e). 

Land  Office — 

Record  of,  prima  facie  evidence,  395(e). 

Larceny — 

Conspiracy  to  commit  several,  216(b). 

Law — 

And  fact  mixed,  90(g). 

Issue  of,  90(a). 

Issue  of,  for  court,  90(b). 

Of  another  state  must  be  proved,  19(c). 

Of  foreign  country  must  be  proved,  19(c). 

Presumption  of  knowledge  of,  44. 

Question  of,  may  be  submitted  to  jury,  when,  90(1). 

Tendency  of  evidence  is  question  of,  90(i). 

Law-books — 

Reading  to  jury,  90(d). 

Lease — 

Delivered  on  condition,  parol,  433(b). 
Paroi  evidence  as  to  crops,  456(c). 
Written,  oral  agreement  to  rebate,  419(h). 
Written,  verbal  promise  to  repair,  419(g). 

Legal  Conclusions — 

Denial  of,  elfect  of,  4(h). 

Legal  Representatives — 

Declarations  of,  206. 


688  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Legatee — 

Declarations  of  one  against  another,  212  (k). 

Legislature — 

(See  Acts,  Joumal.) 

Legitimacy — 

Presumption  of,  is  strong,  66(a), 

Letters — 

As  ancient  documents,  380 (c). 
Error  in  excluding,  2'32(e). 
Evidence  explaining  inconsistent,  124(c). 
Of  a  wife  to  husband,  feelings,  269(d). 
Presumption  as  to  how  mailed,  54(c). 
Presumption  of  receipt  by  mail,  38(e). 
Relevant  part  admissible,  381(c). 
Statute  of  frauds,  382(b). 

Libel— 

Admission  binding  in  case  of,  7(d). 

For  charging  malpractice,  experts,  344(c). 

Good  faith  to  mitigate  damages,  1.58(c). 

Malice  in,  how  shown,  1.58(a). 

]\Ialice  rebutted  Ity  circumstances,  158(e). 

Opinions  as  to  person  intended,  336(c). 

Presumption  as  to  plaintiff's  character,  137(f). 

Presumption   that  plaintiff's  character  is  good,  40(b). 

Rebutting  malice  by  common  report,  158(e). 

Social  relations  of  parties,   142(a). 

Wealth   (jf  defendant   considered,   134(c). 

License — 

Shown  by  journal  entry,  412(b). 

License  Cases — 

Negative  allegations,  proof  of,  66(b). 

Life-guards — 

Operation  of,  experts,  360 (d). 

Life  Insurance — 

Including   beneficial    certiflciites.   454(e), 
Statistical  tables   of,   172(b). 


GENERAL    INDEX  689 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Limitations,  Statute  of — 

Amending  to  plead,  7(b). 

As  conclusive  presumptions,  44(e). 

Burden  of  proof,  47(g). 

Effect  of  amendment,  114(b). 

Liquors — 

Malice  in  sale  of,  156(c). 
Negative  allegations,  proof  of,  G6(b),(g). 
Opinion  as  to  name  and  quality,  326(f). 
Prima  facie. proof  of  unlawful  use,  78 (g). 

Local-option  Law — 

Burden  of  proof  does  not  shift,  78 (e). 

Locomotive — 

Fires,  132. 

Lodge — 

Local  lodge's  admission  against  supreme,  207(d). 

Logical  Inference — 

Presumption  of  fact  is  same  as,  41(a). 


M 

Machine — 

Defective  condition  after  accident,  129  (i). 
Learning  operation   of,  experts,   360(6). 
Operated  long  time  without  accident,   148 (i). 
Pel  uttal  to  evidence  of  proper  machine,  126(g) 
Similar  operations  of,  149(a). 

Machinery — 

Lenionstration  of  operation,  251(c). 

Malice — 

Absence  of,  in  cutting  trees.  156(g). 

Advice  of  magistrate  to   rebut,    157(b). 

Belief  of  a  party,  324(a).(b). 

Evidence  to  rel)ut.  !.')(;  fe). 

In  libel,  rebutting  by  rinunistanees,  158(e). 

:■.!   libel,  rebutting  by  comnidn   report,  158(e). 

In  liljel  shown  by  its  falsity,  1.58(a). 


g9Q  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Malice — Continued. 

In  libel  shown  by  other  libels,  158 fa). 

In  prosecutions,   157. 

In  sale  of  liquor,  156(c). 

In  separating  husband  and  wife,  156(d). 

In  slander,  shown  by  other  slanders,  158(b). 

Rebutting,  ejection  of  passenger,  195(h),(i). 

Shown  by  previous  threats,  156(a). 

Showing  legal  advice  to  rebut,   157(a),(b). 

Slander,  evidence  to  rebut,  158(d). 

Statements  of  one  charged  with  assault,   156(b). 

Malicious  Prosecution — 

Arrest  in  good  faith,  324:(b). 

Changed  by  amendment,  110(b). 

Former  testimony  before  magistrate,  176(c). 

Founded  on  probable  cause,  40(d). 

Plaintifl"s  good   reputation  admissible,   138(c). 

Plaintiff's  reputation,  knowledge,  150(a). 

Proof  by  plaintiff,  40(d). 

Rebuttal  of  malice,  157(a). 

Social  standing  of  parties  in,  142(b). 

Malpractice — 

Medical  experts  in  cases  of,  344. 

Mandamus — 

Burden  of  proof,  89(d). 
Open  and  close,  89(d). 

Manhole — 

Simihir  accidents  at  same,   148(f). 

Marriage — 

Admission  as  to  former,  178 (m). 
Certificate  of — 

production  necessary,  when,  401. 

requirements  of,  401  (  a ) . 
How  proved  in  divorce  cases,  401(d). 
In  foreign  country,  401(c). 
Presumption  as  to  regular,  39(c). 
Presumption  of  continuance  of.  66(d). 
Proved  by  admissions,  401(b). 
Proved  by  persons  present,  401(b). 
Proved  by  reputation,   167(c)    et  seq. 


GENERAL    INDEX  691 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Married  Woman — 

Presumption  in  her  favor,  27(c). 

Master — 

To  examine  writings  or  book,  376. 

Mathematical  Tables — 

Exception  to  hearsay,  172. 

Measure — 

Fixed  by  law,  parol,  439(h). 

Mechanic's  Lien — 

Modifying  statement  by  parol,  388(b). 
Notice  of,  secondary  evidence,  373(c). 

Medicine — 

Allegation  of  expense  of,  106(e). 

Memory — 

Of  personal  appearance,  identity,   127(a). 

Mental  Capacity — 

Declarations  to  show,  162(f). 
Expert  witnesses,  349. 
Xon-expert  witnesses,  348. 
Subscribing  witnesses,  348(e). 
To  make  a  will,  347. 

To  understand  business,  347(d),   348(b). 
Weight  of  testimony,  350. 
charge  on,  350(c) . 

Mental  Suffering — 

By  ejection  from   street-car,  159(b). 
Caused  by  dog-bites,   evidence,   159(a). 
From  false  arrest,  159(b). 

Mercantile  Agencies — 

Jiidiiial  notice  of  business,  25(e). 

Mine — 

Dangerous  roof,  cxix'it  (ipiiiion.  .3G3(b). 


692  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Miner — 

Custom  of,  depositing  refuse,  439(g). 

Minute-book — 

Need  not  be  produced,  Avhen,  392(e). 

Misprision  of  Treason — 

Two  credible  witnesses,  258  (b). 

Mistake^ — 

(See  Parol  Evidence.) 

In  bid  on  public  contract,  S(b). 

In  judicial  admission,  7(g),  8(b). 

Mob- 
Acts  and  declarations  of,  215(c). 

Model — 

Of  machinery,  251(c). 

Money — 

Knowledge  of  counterfeit,  146(f). 
Using  in  connection  with  trial,  128(h). 

Moon — 

Time  of  rising,  almanac,  172(a). 

Mortgage — 

Acknowledgment,  conclusive,  when,  402 ( a), (b). 
Parol  evidence  to  describe  debt,  457  ( a),  (b). 
Parol  to  show  false  description,  432(g). 
Rebuttal  to  show  an  inferior,  59(a). 
Validity,  question  for  court,  383(c). 


Mortgagee — 

Declarations  of,  after  assignment,  211(a). 

Motion — 

For  verdict,  a  submission,  when,  101. 
at  close  of  evidence,  100(b),  101. 
before  the  defense,  100. 
involves  admission,  99(d),(e). 
made  by  eacli  party,  101. 
made  by  one  party,  100. 
makes  court  trier  of  fact,  when,  101. 


GENERAL    INDEX  693 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Motion — Continued. 
To  rule  out — 

all  testimony  of  a  witness,  239(b). 

answer  not  responsive,  239(d). 

evidence  admitted  subject  to  objection,  238(d). 

evidence  against  co-defendant  afterwards  dismissed,  238(c). 

improper  answer,  239(e). 

improper,  when,  238  ( e ) . 

instruction,  form  of,  241. 

instructions  to  disregard,  240. 

must  be  specific,  239(a). 

part  of  answer,  239(c). 

proper,  when,  238 (a). 

proper  question,  239(e). 

testimony  of  incompetent  witness,  238(b), 

whole  answer,  239(c),(d). 

Motive — 

Facts  and  circumstances  supplying,  151. 

For  an  illegal  act,  151(a). 

For  lawful  act,  151(a). 

General  principles,   151. 

In  injuring  horses,  152(c). 

Of  accused,  relations  with  woman,  151(b). 

Other  crimes  to  show,  152. 

Seduction  of  deceased,  152(d). 

Shown  by  charges  of  lodge,  151(b). 

Motormen — 

As  expert  witnesses,  359(d). 
Declarations  of,  204(d). 

Moving  Picture — 

Showing  before   court,  250(f). 

Municipal  Corporation — 

Judicial  notice,  17(b). 

adoption  of  charter  noticed,   17(c). 
city  courts  noticed,  17(d). 
elections  noticed,   17(c). 
population  noticed,   17(d). 

Murder — 

Accused's  declarations  afterward,  197(d). 
Character  of  deceased,  141  ( li)  ,(<• ) . 
Character  of  deceased,  proof,   141(d),(e). 


g94  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Murder — Continued. 

Declarations  of  deceased,  197(g). 
Facts  leading  up  to,  195(a). 
In  second  degree,  intoxication,  161(b). 
Opinion  as  to  time  to  escape,  326(d). 


N 

Name — 

Erased  from  will,  presumption.  29(g). 
Same,  in  proving  identity,  127(a). 

Nature — 

Judicial  notice,  24(b). 

Negative  Allegations — 

Describing  an  offense,  proof  of,  66(a). 

Essential  part  of  case,  66(a). 

In  abortion,  66(f). 

In  bigamy  case,  66(d). 

In  criminal  cases  generally,  66(d). 

In  knowledge  of  adversary,  66(b),(d). 

In  license  cases,  66(b). 

In  liquor  cases,  66(b),(g). 

Negative  Testimony — 

Affidavits  to  show  prejudice,  94(f). 
Approved  charge,  94(e). 
Definition  of,  94(b). 
On  questions  of  notoriety,  94(f). 
Weight  of,  94(a). 

Negligence — 

Action  for,  may  be  maintained,  when.  86 (i). 
Admissions  of  injured  person,  211(d). 
Allegation  wanting,  defect  cured,  112(d). 
Allegations  of,  106(g). 

Burden  of  proof,  40(e) ,(  f)  ,(g) ,  86(a). (b). 
Burden  to  prove  contributory,  86(d),(e). 
Causing  death  of  horse,  burden,  60(c). 
Causing  personal  injury,  burden,  60(f). 
Charge  as  to  presumption,  40(h). 
Collision  at  street  crossing,  135(d). 
Condition  of  tracks  at  time  of  injury,  195(d). 
Contributory,  all   evidence  considered,  86(g),(h) 


GENERAL    INDEX  695 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Negligence — Continued. 

Contributory,  burden,  86(f). 

Contributory,  dill'erent  minds  may  differ,  104(h). 

Contributory,  error  in  charge,  86(g),(h). 

Custom,  affected  by,  135(b)  et  seq. 

Custom  to  rebut,  126(a). 

Deceased  careful  at  other  times,  131(d). 

Defective  pleading,  rebuttal,  109(c). 

Defendant  cross-examining  on  contributory,  302(e). 

Defense,  another  cause,  rebuttal,  199(g). 

Defense  of  proper  machine,  rebuttal,  126(g). 

Directing  a  verdict,  104(d),(e). 

Direct  proof  of,  104(f). 

Doctrine  of  res  ipsa  loquitur,  86(c). 

Employer  carrying  workmen's   insurance,  130 (n). 

Employe  relying  on  promise  to  repair,  324  ( d ) . 

Evidence  conflicting  and  uncertain,  104(c). 

Evidence  not  tending  to  prove,  104(e). 

Evidence  raising  issue  of  contributory,  86 (j). 

Expert  witness  on,  363  ( a ) . 

Facts  conclusively  determined,  104(b). 

Failure  to  call  plaintiff's  physician,  182(d). 

Fair  inference  of,  104(f),(g). 

Familiarity  of  deceased  with  crossing,  131(d). 

Guy-wire,  breaking  of,  135(e). 

In  blasting,  evidence  to  support,  126 (i). 

Indefinite  allegations  of,  106(g). 

Indirect  proof  of,  104(f). 

In  keeping  dogs,  156(f). 

In  making  up  train,  135(b). 

In  selling  drugs,  rebuttal,  126 (k). 

Mixed  question  of  law  and  fact,  104(a). 

Xo   sign-board  at  railroad,  125(b). 

Obstructed  view  at  grade-crossing,  195(e). 

Of  bailee  of  money,  res  gestae,  195(g). 

Opinion  of  inspector  of  machinery,  334(b). 

Opinion  on  permanency  of  injuries,  343(b), (c). 

Opinion  on  question  for  jury,  363(e)   et  seq. 

Persons  injured  at  same  crossing,  131(d). 

Physical  examination,  249. 

Pleadings  raising  issue  of  contributory,  86 (j). 

Preponderance  based  on  probabilities,  86  (k). 

Presumption  as  to,  32(b),  40(g), (h),  86(b). 

Presumption  of  capacity,  28(c). 

Presumption   of,  unanswered,  62(d). 

Presumption  of.  from  defect,  31(d). 


696  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Negligence^ — Continued. 

Prima  facie  ^^roof  unanswered,  62  ( c ) ,  ( d ) . 
Province  of  court  and  jury,  104. 
Proving,  wilful  conduct  plead,   115(g). 
Questions  of  law  and  fact,  104. 
Report  of  accident — 

by  agents,  163  (a) . 

notice  to  produce,  374(d). 

privileged,  268  ( g ) . 
Resting  on  guess  and  conjuncture,  104(f),(g). 
Scintilla  rule  involved,  104  ( d) ,  ( e) . 
Signals  to  avoid  accidents,  94. 
Skillful  operation,  expert,  363(a). 
Subsequent  repairs,  129(a), (b). 
Time  in  coupling  cars,  326(e). 
Train  collision,   135(c). 

Negotiable  Instruments — 

Presumptions  in  law  of,  31(d). 

New  Matter — 

Defense  containing  none,  51(a),(j). 
Denial  in  same  pleading,  burden.  49(a). 
Evidence  of,  under  general  denial,  116(a). 
In  answer^  2(b). 

burden  of  pi'oof,  47(a). 
In  reply,  1(a),  2(a). 

burden  of  proof,  48  (a). 
Nature  of,  51  (a) . 

Not  admissible  under  denial  in  reply,  117(a). 
Open  and  close  on  defense  of,  56(c). 

Newspaper — 

As  commercial  publication.  173(c). 

Of  same  impression,  primary  evidence,  364(b). 

Statements,  hearsay,   163(d). 

New  Trial — 

None  on  directed  verdict,  99(g). 
On  setting  aside  verdict,  99(f),(g). 

Nitroglycerine — 

Expert  witness  on,  357(b). 


GENERAL    INDEX  697 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Noise — 

Description  of,  opinion,  336(b). 

Nonsuit — 

Effect  of,  99(a). 

Judgment  is  final,  99(a). 

Overruled,  waiver  of  exception,  100(a). 

Notary  Public — 

Certificates  of,  402. 
Misconduct  of,  72(d). 
Statement  of,  in  protest,  163(c). 
Taking  depositions,  257. 

consulting  court,  257(f). 

issuing  subpoena  duces  tecum,  257(d). 

officer  of  court,  257  ( f ) . 

power  to  commit  witness,  257. 

Notice — 

Failure  to  produce  upon  demand,  182(c). 

Foundation  for  secondary  evidence,  366(b). 

Of  attachment,  how  proved,  414(c). 

Of  bankruptcy  case,  how  proved,  146(b). 

Of  defect  in  sidewalk,  146 (m). 

Of  prior  equities,  146  ( 1 ) . 

Of  sale,  how  proved,  414(c). 

Proved  by  records  of  mercantile  agency,  173(a). 

To  produce  original,  371(a). 

in  criminal  cases,  371(d). 

must  be  reasonable,  372. 

not  necessary;  when,  373. 

order  to  produce,  374(e). 
To  vacate  premises,  secondary  evidence,  373. 

Notoriety — 

.Negative  testimony  on,  94(f). 

Nuisance — 

Gases  shown   by  chemical  experts,  357«(c). 

Nunc  pro  tunc — 

To  correct  record,  407. 


(598  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

o 

Objections — 

Defense  tried  as  if  pleaded,  116(b). 

Failure  to  object  to  first  question,  235(c). 

None  to  answer  without  denial,  116(c). 

None  to  defective  answer,  116(c). 

OfTering  evidence,  234. 

Of  incompetency  not  specific,  234 (i). 

Postponed  until  answer,   235(d). 

Power  of  attorney  to  waive,  14(a). 

Repeating,  to  same  kind  of  evidence,  236(a). 

iShould  be  specific,  when,  234(g). 

Specific,  waiver  of  other  objections,  234(g), 

Time  for,  235(a). 

To  added  statement  without  interruption,  235(e) . 

To  any  evidence  on  defective  pleading,  113,  235(g). 

not  favored,  113(b). 
To  any  evidence  on  indefinite  petition,  113(c). 
To  counterclaim  not  connected  with  action,  113(d). 
To  defective  petition  waived,  when,  112(b). 
To  evidence  after  argument,  235(b). 
To  evidence  offered,  234. 
To  preliminary  question,  235(h). 
To  proof  of  former  testimony,   176(a). 
To  second  or  third  incompetent  question,  235(c). 
To  witness  before  taking  oath,  235(f). 

Objects — 

Inspected  by  jury,  243(a). 

Occupation — 

Of  accused,   140(c) . 

Occurrence — 

Part  of  same,   194(a). 

Offenses — 

Accused  is  indicted  for  other,  133(f). 
Commission  of  other,  133(a). 
Door  opened  for  other,  133(g). 

Offer- 
To  confess  judgment,  effect  of,  13(b). 


GENERAL    INDEX  699 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Offer  to  Compromise — 

Action  to  quiet  title,  183(g). 

Attorney  should  not  mention  to  jury,  183(b). 

Xot  an  admission,  183(a). 

Office- 
Evidence  of  election,  37(a). 

Officers — 

Attempt  to  bribe,   128 (i). 
Military  officer  not  a  public,  37(d). 
Obtaining  confession,  presumption,  187(b). 
Presumption  in  favor  of  acts  of,  34(a). 

as  one  of  law,  34(d). 

effect  of,  34(b). 

one  of  fact,  34(c). 

Official  Acts — 

Prima  facie  proof  of,  37(a). 

Official  Proclamations — 

Judicially  noticed,  17(a). 

Oil-well- 
Nature  of  drilling,  notice,  25(a). 

Oleomargarine — 

Expert  witness  on,  357(a). 

Judicial  notice  of  appearance  of,  24(c). 

Omnia  Praesumuntur — 

Regularity  makes  prima  facie  proof,  33(a). 

Open  and  Close — 

By  party  holding  affirmative,  55(a). 
Discretion  allowed  trial-court,  57(a),(b). 
Error  in  refusing  to  re-open,  58(g). 
Error  in  ruling,  57(a). 
Error  must  be  prejudicial,  57(c). 
Evidence  for  plaintiff  after  resting,  57(d). 
Evidence  in  chief  closed,  when,  58(a),(c). 
Evidence  in  chief  out  of  order,  58(a)  ,(b)  ,(c). 

error  in  ruling,  58(b),(d). 

presumption  in  favor  of  ruling,  58(b). 
Evidence  in  rebuttal  begins,  when,  58(a). 


700  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Open  and  Close — Continued. 

Evidence  out  of  order,  rebuttal,  58(c)    et  seq. 

In  a  court  case,  57(a). 

In  action  to  recover  realty,  56(b). 

In  special  proceedings,  55(d). 

In  will  contest,  85  (b). 

Justification  as  a  defense,  56(a). 

Xew  matter  as  defense,  56(c). 

Of  evidence,  55. 

Of  evidence  and  the  shifting  "burden,"  61(c). 

Payment  as  defense,  56(c). 

Presumption  in  favor  of  ruling,  57(c). 

Re-opening  a  criminal  case,  58 (i). 

Re-opening  after  final^ubmission,  58  (h). 

error  to  refuse,  Avhen,  58  (h). 
Re-opening  when  adverse  party  can   not  answer,  5'8(d),(f). 
Rules  often  relaxed,  57(b). 
Substance  of  issue  to  be  considered,  55(b). 
When  there  are  several  issues,  55(c). 

Opening  Statement — 

Admission  in,   14(d). 
Directing  verdict  on,   10.3(e). 
Petition  dismissed  on,  103(e). 

Opinion  Evidence — 

As  to  condition  of  room,  32.3 (e). 

As  to  who  was  meant  in  libel,  127(h). 

Belief  of  a  party,  324. 

Error  in  admitting,  323(h). 

Exclusion,  illustrations,  323. 

Experts — 

confidence   in,   329(b),(c). 

cross-examination  of  witnesses,  332(c)   et  seq. 

discretion   of   court,   328. 

error   in   excluding  testimony.   332(a). 

examination  of  witnesses,  332. 

general  principles,  327. 

hypothetical  questions,  facts,  330. 

hypothetical  questions,  assumptions,  331. 

impeachment  of  witnesses,  333. 

opinion  may  be  personal,  332(a). 

preliminary  examination,  328. 

province  of  jury,  320. 

qualifying  of  witnesses,  328(b). 

witness  stating  reasons,  329(a). 


GENERAL    INDEX  701 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Opinion  Evidence — Continued. 
General  rule.  323(a). 
Handwriting,   127(b),  337. 
In  dying  declarations,    170 (k). 
Insurance  facts  excluded,  323(f). 
Intent  of  a  party,  324. 
Non-experts — 

general  rule,  326  ( a ) ,  ( b ) . 

illustrative  cases,  326. 

on  pain  and  sufl'ering,  199(e),(f). 

qualifying  ^vitnesses,  326(c). 
Of  annual  household  expense,  323(d). 
On  evidential  facts,  335(a). 
On  precise  question  which  goes  to  jury,  335. 
Opinions  generally  excluded,  322(a). 
Poison,  contents  of  vial,  342(a). 
Understanding  of  conversations,  323(b),(c). 

Ordinances — 

Defining  built-up  portions  of  city,  334(c). 

How  proved,  399(a). 

In  bill  of  exceptions,  20(d). 

In  negligence  cases,  399(d),(e). 

In  record  on  review,  20(c) ,(d)  ,(e) .  . 

Judicially  noticed  by  city  courts,  20(a). 

Naming  street,  parol  to  show  change.  456(d). 

Notice  by  reviewing  courts,  20(a)  ,(e)  ,(f) . 

Repealed,  not  judicially  noticed,  20(b). 

Owner  of  Land — 

Declarations  of,   as  to  trust,  dower,  212(f). 

Owner  of  Personalty — 

.\(liiii.ssion.s  ui,  alter  sale,  211(a). 

Owners  in  Common — 

Admissions  of  one,  212 (i). 


Pain  and  Suffering- 
Certainty  of  result,  130(h). 
Complaints  of,  rcl)uttal.  199(g), 
]-:vidence  as  to  future,  343(a). 
Expressions  of,  199, 
Opinion  <if  non-expert,  346. 


702  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Parol  Evidence — 

Ambiguities  and,  444. 

As  to  consideration  in  deeds,  42S. 

By  one  negligent  in  signing,  432(e). 

Contracts,  rule  of  exclusion,  418. 

Deeds,  rule  of  exclusion,  419. 

General  rule  of  exclusion,  416. 

Indorsement,  rule  of  exclusion,  424. 

Insurance  policy,  rule  of  exclusion,  420. 

Interests  acquired  by  third  persons,  417(c). 

Note,  rule  of  exclusion,  423. 

Of  surrounding  circumstances,  445  et  seq. 

Principal  exceptions  to  rule,  427. 

Surety  bonds,  rule  of  exclusion,  421. 

Third  persons  not  affected,  417. 

To  apply  writing  to  subject-matter,  452. 

To  prove  fraud,  wliole  transaction,  432. 

To  prove  restriction  on  deed,  432  ( i ) . 

To  remove  latent  ambiguity,  444. 

To  show  complete  contract,  435. 

To  show  conditional  delivery,  433. 

To  show  custom,  438. 

To  show  false  statements  of  agent,  432(d). 

To  show  husband  trustee  of  wife,  430(c),  431(b). 

To  show  mistake,  clear  evidence,  432(j). 

To  show  mistake  in  deed,  432(g),(h). 

To  show  mistake  in  name,  432(c). 

To  show  mistake  in  return,  432(h). 

To  show  partner  trustee,  431(c). 

To  show  subsequent  agreement,  434. 

To  show  usage,  438. 

Wills,  rule  of  exclusion,  422. 

Parties — 

Accused   testifying  against  himself,  203(g). 

Adverse  party  called,  293(d). 

Against  administrator,  280 (a). 

Against  assignee  of  representative,  281(a). 

Against  executor,  278. 

Against  guardian   of  insane,  279. 

Against  heirs,  280(d),(e). 

Against  joint  contractor,  287(a). 

Against  partner,  287. 

Against  representative,  280(b). 

Against  trustees,  280(c). 

Against  widow  as  creditor,  280(f). 


GENERAL    INDEX  703 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Parties— Continued. 

Agent  of,  against  devisee,  284(c). 

Agents  of,  not  incompetent,  275(a). 

Assignor  of,  against  representative,  282. 

As  witness,  refusing  to  answer,  307(f),  30S(e). 

Belief  of,  324. 

Compelling  party  to  testify,  293. 

Competency  of,  to  testify,  271(a). 

Competent  as  to  account-book,  288. 

Competent  as  to  subsequent  facts,  283(a). 

Competent  in  action  for  death,  291(b). 

Competent  in  action  on  deed,  291. 

Competent  in  action  on  will,  291. 

Competent  when  not  adverse,  274. 

Contract  made  through  agent,  284. 

Deposition  of,  refusing  to  answer,  257(e). 

Determination  of  adverse  relation,  293(c). 

Door  opened  for,  as  to  admissions,  286. 

Door  opened  for,  as  to  conversations,  285,  286. 

Door  opened  for,  as  to  transactions,  285. 

Door  opened  for,  by  deposition,  290. 

Door  opened  for,  former  testimony,  289. 

Equality  of,  by  statute,  271(c). 

Examination  of  adverse  j-arty,  293. 

Executor  against  executor,  competency,  280(a),  282(d). 

Excluded  must  be  adverse  in  interest,  273(a). 

Excluded  must  be  necessary  parties,  273(c)   et  seq. 

Identification  of,  parol,  450. 

In  common,  admission  of,  212 (i). 

Xot  boiuid  by  his  hostile  witness,  295(e). 

Not  bound  by  statements  on  other  side,  200. 

Objection  to  incompetency  of,  272. 

Reason  and  spirit  clause,  292. 

Relation  of  parties,  parol,  451. 

>Sub&tantiating  own  statement,  186(c), (e). 

Taking  deposition  of  adverse  party,  2^3(e),(f). 

Testimony  of,  generally  admissible,  271(b). 

To  the  record,  exclusion,  273(b). 

Partnership — 

Act  of  partner  in  scope,  209(a),(c). 
Acts  of  partner  after  dissolution,  209 (d). 
Admission  of,  by  writing,  179(f). 
Admission  of,  in  testimony,  178(a). 
Commercial  publications  to  prove,  173(b). 
Common  report  to  prove,  209(g). 


704  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Partnership — Continued. 

Declarations  of  one  as  to  title,  211(b). 

Declarations  of  one  that  he  is  a  partner,  209(f),{h). 

Declarations  of  ostensible  partner,  209(b). 

Deed  in  firm  name,  209(g). 

Evidence  to  prove,  209(g). 

Issue  of,  opinions,  335(b). 

Of  son  and  father,  209(e). 

Partner  binding  himself  by  acts,  209(f),(h). 

Partner  inspecting  books  of,  375  ( h ) . 

Presumption  of  continuance  of,  42(c). 

Relation  of  parties,  451  (a). 

Passenger — 

Declarations  after  injury,  197(e). 

Patent  Office — 

Records  of,  how  proved,  395  ( b ) ,  ( c ) . 

Patient — 

Declaration  of,  not  binding  on  physician,  200(h). 
Statements  of,  to  physician,  199(a)    et  seq. 

Pavement — 

Measure  of,  parol 'to  explain,  439(h). 

Payment — 

Burden   of  proof  on  defense  of,  47(b),  4S(b). 
Excluding  evidence  of,  227(e). 
Made  by  profits  of  policy,  451(g). 
Open  and  close  on  defense  of,  56(c). 
Presumption  after  20  years,  30(a). 
Presumption  of,  as  to  note,  30(b),(c). 
Presumption  of  passing  title,  43(j). 
Shifting  of  burden  of  proof  as  to,  60(e). 

Pecuniary  Ability — 

(See  Financial  Ahilitij.) 

Pedigree — 

General  rulr,  167(a). 

Perch — 

Meaning  of,  p:irnl,  445(e). 


GENERAL    INDEX  705 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Performance — 

As  to  arbitration  of  loss,  burden,  53(b). 

As  to  conditions  precedent,  burden,  53(c). 

As  to  conditions  subsequent,  burden,  53(d). 

Burden  of  proof  to  show,  53(a),(h). 

In  the  customary  mode,  441  (i). 

Of  specific  breaches,  burden,  53(h),(i). 

To  show  exciise  for  breaking  stipulation,  53(g). 

To  show  immunity  for  loss,  53(f). 

To  show  suicide  of  insured,  burden,  53(e). 

Two  modes  of,  ambiguity,  444(e). 

Perjury — 

Corroboration  of  one  witness,  25S(c),(d). 
Declarations  of  principal  involving  accused,  212(h). 
Intoxication  as  a  defense,  161(d). 
Number  of  witnesses,  76  (i). 
Proof  of  former  trial,  412(f). 
Proof  required,  76(i),(j). 

Permit — 

Loss,  secondary  evidence,  369(b). 

Personal  Property — 

Opinion  as  to  damage  to,  351  (f) . 

OwTier  may  give  opinion  of  value,  353(a). 

Petition — 

Amendment  of  defective,  after  verdict,    111(b). 

Defect  in,  waived,  112. 

Defective,  cured,  when,  112. 

Dismissed  on  opening  statement,   103(e). 

Local  option,  amendment  of,  89(b). 

Not  to  be  aided  by  answer,  when,  114(b). 

Objection  to  defective,  waived,  when,  112(b). 

Record   and   amendment  of  defective,    108(f). 

Stronger  than  evidence,  effect  of,  110(h). 

Writing  made  part  of,  burden,  46(b). 

Photographs — 

Acrobat,  picture  of,  250(j). 
Accuracy  of,  250. 
Collapsed  buildings,  250(c). 
Film  of  moving  picture,  250(f). 
General  rule,  250(a). 


706  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Photographs — Continued. 

Picture,  explanation  of,  250(1). 
Premises,  accident,  250(b). 
Roentgen  ray,  250(g),(h). 
Testator    (old  picture),  250(d). 
Will  case,  testator,  250(e). 
X-Rav,  250(g),(h). 

Photography — 

Judicial  notice,  24(a). 

Physical  Condition — 

Opinion  of  non-expert,  346. 

Physical  Examination — 

Accused  submitting  to,  249(h). 

Application,  time  of,  249(d),(e). 

As  a  privileged  communication,  267(e), 

In  breach  of  promise  case,  249(g). 

In  presence  of  jury,  249(f). 

Judge  may  order,  249. 

Judge  may  refuse,  249(c),(d). 

Of  accused,  249(h). 

Physician  not  privileged,  249(a). 

Plaintiff,  refusal  of,  249(b). 

Physician — 

Admission  to  one  named  by  court,  178 (j). 
As  a  medical  expert,  .342  et  seq. 
Character  of  one  prescribing  liquor.  143  (e). 
Xot  privileged,  when.  249(a). 
Privileged  communicatinns,  267. 

does  not  cover  independent  knowledge  of  physician,  267(d) 

includes  physical  examination   of  patient,  267(c). 

patient  may  waive  privilege,  267  ( a),  (c). 

physical  examination   by  order  of  court,  267(e). 
Testifying  to  declarations  of  patient,  199(a)   et  seq. 

Plaintiff- 
lias  Inirdi  11  if  proof,  when,  46(a), (b). 

Plaster  Cast — 

Inspected   by  jury,   244(g). 

Plat^ 

Or  plan  of  land  division,  250 (k). 


GENERAL    INDEX  707 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Plea — 

Of  guiUy  as  evidence,  9(c). 

Of  "not  guilty,"  issue  made  by,  76(c). 

Pleadings — 

Evidence   under   indefinite,    lOG(b). 

Indefiniteness  objected  to,  lOG(c). 

Introduced  by  adversary,  7(f). 

Motion  to  indefinite  pleading,  error,  10(3  (i). 

Xeed  not  state  evidence,  106 (j). 

Xot  admission  in  action  for  penalty,  9(c). 

Xot  admission  in  criminal  action,  9(c). 

Objection  to  evidence  on  defective,  113. 

Objectiort   to  evidence  on  indefinite  petition,  113(c). 

Objection  to  indefiniteness,  106(c). 

Reading  to  jury,  95(a),(b). 

Rebutting  proof  on  defective,  109(c). 

Policemen — 

Defects  in  streets  reported  by,  208(d). 
Presumption  as  to  acts  of,  40(c). 

Policy — 

Experts  on  game  of,  360(g). 
Meaning  of  "policy"  as  a  game,  25(c). 

Poll  books — 

rriiiia  facie  evidence  of  contents,  65(i). 

Port-warden — 

Entry  of,  as  to  condition  of  goods,  171  (k). 

Positive  Testimony — 

Approvfd  cliarge,   94(e). 
Definition  of,  94(c). 
Weight  of,  94(a). 

Post  Mortem  Examination — 

Rc'port  of,   not   admlseililo.  wlion,  334(e). 

Poverty — 

(See  Financial  Ability.) 

Of  disinherited  son,   134(g). 

Of  pl-uiitin"  too  remote.  134(a). 


708  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Power  of  Attorney — 

Lost  and  unrecorded,  secondary  evidence,  369 (j). 

Praecipe — 

For  character  witness,  145(h). 

Prejudice — 

Affidavits  to  show,  94(f). 
Presumed  from  illegal  evidence,  223(c). 
Presumed  from  incompetent  evidence,  223(b). 
Presumed  from  misleading  evidence,  223(a), 

Preliminary  Statement — 

Exclusion  of  evidence,  for  not  mentioning  in,  227(c). 

Premises — 

Photographs  of,  250. 

Preparation — 

For  an  act,  128. 

Preponderance — 

Charge,  requiring  it  of  wrong  party,  64(a). 

Claim  based  on  criminal  acts,  84(a)  ,(b)  ,(g) . 

Clear  and  convincing  evidence  and,  67(b). 

Court  deals  with  probabilities,  83(b),(c). 

Defense  based  on  criminal  acts,  84(a)  ,(b)  ,(g) . 

Defense  based  on  fraud,  84(c). 

Defense  of  duress,  proof  by,  80(c). 

Defense  of  insanity  by,  81(a),(b),(c),(d). 

Defenses  in  confession  and  avoidance,  80(b). 

"Fair  preponderance"  in  charge,  83(e),(f). 

In  action  of  slander,  84(e). 

In   action  to  recover  gambling  losses,   84(f). 

In  assault  and  battery,  84(d). 

In  civil  action  for  selling  liquors,  84(f). 

In  two  or  more  defenses,  96(d). 

In  will  contests,  83  ( h ) . 

Meaning  of,  83(a),(b). 

No  degrees  of,  83(e),(f). 

Required  for  rebuttal,  when,  63(a),(b). 

Rule  applies  to  contract   for   services,  when,   75(f),(g). 

Rule  in  civil  actions,  83(a). 

"Satisfied  by,"  in  charge,  83(d). 

Verification  of  pleading,  eflfect,  83(a). 

Where  alibi  is  shown,  79(a). 


GENERAL    INDEX  709 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Prescription — 

Ground  laid  for  secondary  evidence,  366(b). 

Present  Condition — 

Relevancy  of,  to  show  past  condition,  42(g). 

Present  Possession — 

Relevancy  of,  to  show  past  possession,  42(g), 

Presumptions — 

Against  negligence,  40(g),(h). 

Age  and  capacity  for  crime,  28(a). 

And  the  burden  of  proof,  40(a). 

Arises  on  facts,  26(d). 

As  to  acts  of  military  officer,  37(d). 

As  to  acts  of  police  officer,  40(c). 

As  to  age  of  consent,  28  (d). 

As  to  alteration  of  note,  39(b). 

As  to  child  over  fourteen,  28 (c). 

As  to  child  under  fourteen,  2S(a)  ,(b),(c) . 

As  to  child  under  seven,  28  ( a ) ,  44  ( a ) . 

As  to  date  of  execution  of  deed,  29(d). 

As  to  drawing  of  will,  43(g). 

As  to  how  a  letter  was  mailed,  54  (c). 

As  to  negligence,  86  ( b ) . 

As  to  negligence,  charge,  40(h). 

As  to  offer  to  pay  note,  39(d). 

As  to  regular  marriage,  39(c). 

As  to  revocation  of  will,  29. 

of  law  or  fact,  29(f). 
As  to  tenant  holding  over,  43  (k). 
As  to  two  securities,  43(h). 
Charge  to  jury  on  one  of  fact,  41(a). 
Clear  evidence  and  strong,  67(b). 
Conclusive  defined,  44(a). 
Conflict  of,  42(a). 
Directing  verdict  on,  62(b). 
Distinguishing  kinds  of,  41(a),(b). 
Effect  of  rulings  on,  32(a). 
Estoppel  as,  44(e). 
Evidence,  effect  on,  26(e). 
Evidence  required  to  rebut,  63(a),(b). 
Facts,  arise  on,  26(d). 
Facts,  not  always  warranted  Ijy,  26(d). 
Failure  to  answer,  effect  of,  62(b). 


710  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Presumptions — Continued. 

Founded  on  experience,  26(b). 
From  destruction  of  will,  29(e). 

of  law  or  fact,*  29(f). 
From  present  condition,  42(g). 
From  present  possession,  42(g). 
From  seven  years'  absence,  31(c). 
Inference,  not  always  based  on,  26(c). 
In  construction  of  writings,  effect  of,  43(a),(b). 
In  description  of  subject-matter,  43(e). 
In  favor  of  a  road  record,  35(f). 
In  favor  of  good  character,  charge,  145(f). 
In  favor  of  governor's  findings,  35(e). 
In  favor  of  married  woman,  27(c). 
In  favor  of  the  law  of  forum,  43(1). 
In  negotiable  instruments  law,  31(d). 
Innocence,  not  based  on  inference,  26(c),(d). 
In  statutes  of  limitation,  44(e). 
Legal,  defined,  26(a). 
Legality  of  acts,  40(e),(f). 
Logical  inference,  41(a). 
May  be  strong  or  weak,  67(a). 
Meaning  evidence  sustains  verdict,  41(d). 
Meaning  prima  facie  proof,  32(a),  35(a),  36(a). 
Meaning  that  evidence  was  sufficient,  32(a). 
Need  not  be  alleged,  4(b). 
Of  ademption  of  legacy,  43  ( f ) . 
Of  advancement,  29(a). 
Of  capacity,  28. 

Of  capacity  in  negligence,  28(c). 
Of  capacity  in  rape,  28  (b). 
Of  continuance  and  relevancy,  42  (a)  ,(b)  ,(h) . 
Of  continuance  of  insanity,  42(e).(f). 
Of  continuance  of  partnership,  42(c). 
Of  continuance  of  reputation,  42(d). 
Of  continuance  of  seaworthiness,  42(b). 
Of  conveyance  by  trustee,  38  ( b ) . 
Of  death  after  seven  years,  31(c). 
Of  death  from  disappearance,  41(d). 
Of  fact  as'  a  presumption,  41(c). 
Of  fact,  defined,  41(a). 
Of  gift,  29(a), (b). 
Of  incapacity,  65(d). 
Of  incapacity  for  crime,  28(a). 
Of  innocence,  27. 
Of  innocence,  burden,  27(a). 


GENERAL    INDEX  711 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Presumptions — C'ontinued. 

Of  innocence,  charge  on,   27(b). 

Of  innocence,  doubtful  cases,  27(b). 

Of  innocence,  evidence  to   overcome,   76 (a). 

Of  insanity  from  previous  insanity,  42(f). 

Of  intent,  32(c). 

Of  jurisdiction,  43(c),(d). 

Of  knowledge  of  law,  44. 

Of  legitimacy,  31(b),  66(a). 

Of  loan  when  note  is  given,  43(1). 

Of  negligence,  32(b). 

Of  negligence  from  defect,  31(d). 

Of  negligence  unanswered,  62(d). 

Of  ownership  of  note  as  weak,  67(a). 

Of  passing  title  from  payment,  43 (j). 

Of  payment  after  20  years,  30(a). 

Of  payment  by  administrator,  38(d). 

Of  payment  in  taking  up  note,  30(c). 

Of  payment  of  note  in  hands  of  maker,  30(b). 

Of  payment  used  for  '-relevant,"  41(c). 

Of  performance  of  duty,  38(a)'. 

Of  probable  cause  for  action,  40(d). 

Of  receipt  of  letter  by  mail,  38(e). 

Of  regularity  in  letting  a  contract,  36(b). 

Of  regularity  of  acts  of  officers,  34(a). 

Of  regularity  of  an  election,  36(b). 

Of  regularity  of  approval  of  bond,  36(d). 

Of  regularity  of  assessments,  36(f). 

Of  regularity  of  election  of  widow,  36(e). 

Of  regularity  of  transactions,  30(a). 
Of  sanity,  effect  of,  31(a). 

Of  trust,  29(a), (b). 

Of  validity  of  acts  of  council,  35(b),(c). 
Of  validity  of  official  acts,  34(a). 
as  one  of  law,  34(d) . 
effect  of,  34(b). 
one  of  fact,  34  ( c ) . 

Of  validity  of  local-opticm  election,  35(c). 

Of  valid  will  from  order  of  probate,  31(d). 

Omnia  praesunumtur,  33(a). 

Party  presumed  to  know  law,  44(d). 

Possession  of  stolen  goods  as,  41(b). 

Prima  facie  effect  of,  26(a),(e). 

Res  ipsa  loquitur,  32(1)). 

.Statutory  prima  facie  case,  (-ffect  of,  31(d). 

That  a  man  supported  his  wife,  38(c). 


712  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Presumptions — Continued. 

That  board  of  improvements  reported,  35(d). 

That  brother  is  legitimate,  54(d). 

That  brother  is  of  full  blood,  54(d). 

That  deed  Avas  accepted.  29(d). 

That  every  person  knows  the  law,  44(b). 

meaning  of,  44(c). 

not  a  universal  rule,  44(b). 
That  gift  was  accepted,  29(c). 
That  one  obeyed  orders  of  superior,  3S(f). 
That  plaintiff's  character  is  good,  40(b). 
That  trustee  intended  to  do  his  duty,  38(g). 
Used  to  mean  relevant,  41(e). 

Priest — 

Communications  privileged,  266(a). 

Prima  Facie  Proof — 

Burden  of  proof,  shifting  of,  61  (a)  ,(b)  ,(c). 

Case  for  court  when  unanswered,  62  (a*. 

Charge  to  jury  on  shifting  "burden,"  61(d). 

Directing  burden  on,  62  (a)  ,(b)  ,(c) . 

Directing  verdict  on,  62(a),(b),(c). 

Evidence  required   to   rebut,   63(a),(b). 

Failure  to  answer,  effect  of,  62(a),(b). 

In  contempt  case,  66(e). 

In  criminal  cases,  78. 

In  liquor  eases,  78  (g). 

May  be  strong  or  weak,  67  ( a ) . 

Necessity  of  evidence  to  answer,  61(a). 

Of  election  to  office,  37(a). 

Of  negligence  unanswered,  62  ( c) ,  ( d) . 

Order  of  probate,  85 (b). 

Presumption,  disputable,  26(a), (e). 

Presumption  may  mean  proof,  32(a),  35(a),  36(a). 

Proceedings  of  auditor,  37(b). 

Proof  of  official  acts,  37(a). 

Question  for  jury  when  rebutted,  102(b). 

Rebuttal  of,  question  for  jury,  63(a). 

Record  of  board  of  equalization,  37(b). 

Regularity  makes  such  proof,  33(a). 

Shifts  one  burden,  61  (a)  ,(b),(c). 

Statutory,  effect  of,  31(d). 

Tax  deed  is,  when,  37(c). 


GENERAL    INDEX  713 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Principal — 

Declaration   of,   against   surety,   212(e)  ,(d). 
Declarations  of,  involving  accused,  212(h). 
Entries  of,  in  book,  surety,  212(e). 

Prisoner — 

Admission  by,  178  (i). 

Privileged  Communications — 

Attorneys,  268. 

Clergymen,  266. 

Husband  and  wife,  civil,  269. 

Husband  and  wife,  criminal,  270. 

Physicians,  267. 

Prize  Fight — 

Acts  and  declarations  of  principals,  217(c). 
Association  rules  not  admissible,  334(a). 
Question  for  jury,  opinion,  335 (i). 

Probable  Cause — 

Acts  of  plaintiff's  associates  to  show,  157(c). 

Process — 

Official  return  as  evidence,  414(b). 

Prohibition — 

Entry  in  court  of  appeals  binding  on   supreme,  409(g). 

Promissory  Notes — 

Alteration  of,  presumption  as  to,  39(b). 
Clear  evidence  to  vary,  71(a), (b),(c). 
Conditional  delivery  shown  by  parol,  433(d)    et  seq. 
Consideration,  parol  evidence,  429(a), (b). 
Declaration  by  holder,  gift,  211(e). 
Declaration  in  will  by  holder,  loan,  211(f). 
Declaration  of  holder,  advancement,  211(f). 
Evidence  in  suit  to  reform,  423(f). 
Execution  denied,  primary  evidence,  367(a). 
Failure  of  consideration,  defense,  52(c). 
Failure  of  consideration,  parol,  429 ( a), (b). 
Given   as  a  receipt,   parol.  429  (o). 
Guarantor  of  payment,  parol,  424(f). 


YJ4  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Promissory  Notes — Continued. 

Heirs  of  payee,  competency,  276(a). 

Holder  is  owner,  65  (n). 

Holding  in  due  course,  65  ( m ) . 

Indefinite  answer  as  to  defense,  106(d). 

Indorsement  without  consideration,  429(e). 

Intent  of  party  altering,  325(a). 

Intent  when  signing,  325(d). 

Intention  of  makers,  parol,  423(c). 

Is  promise  to  pay,  65(1). 

Maker  not  party,  competency,  287(d). 

No  delivery  as  a  defense,  52(a). 

One  not  signing,  liability,  423(d). 

Order  for  payment  of,  parol,  457(c). 

Ownership  in  good  faith,  denial,  52(b). 

Parol  evidence  excluded,  423. 

Parol  to  show  subsequent  agreement,  434(e). 

Parol  to  show  true  date,  423(f). 

Parol  to  show  usury,  429(d). 

Payable  in  goods,  price,  parol,  444 (i). 

Payment  as  a  defense,  52(c),(d). 

Presumption  as  to  oflTer  to  pay,  39  ( d ) . 

Presumption  as  to  payment,  30(b),(c). 

Presumption  of  loan  from,  43(i). 

Presumption  of  ownership  is  weak,  67(a). 

Principal  not  party,  competency,  279(d). 

Signed  by  one  as  agent,  parol,  423(a). 

Signed  by  two  persons,  partners,  417(b). 

Sureties  not  parties,  competency,  280(g). 

Taking  with  notici,  proof  of,   146(j),(k). 

Verbal  agreement  as  to  payment,  433(g). 

Verbal  agreement  as  to  security,  423(e). 

Waiving  demand   and  notice  verbally,  424(d). 

Want  of  consideration,  defense,  52(a). 

Want  of  consideration,  evidence  to  show,  429(f). 

Woman's  intention  in  signing,  parol,  423(b). 

Proof- 
Amendment  conforming  pleading  to,  110. 
Lacking,  judge  calls  attention  to,  114(c). 
Must  agree  with   allegations,   106(a). 
Of  facts  noticed  not  necessary,  15(a). 

Proofs  of  Loss — 

Notice  to  produce  originals,  371(c). 


GENERAL    INDEX  715 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Property — 

Alt  ion   to  recover,  burden,   89  (b). 
[Malicious  destruction   of,  malice,   157(a). 
Threats  against,  128 (e). 

Proposal — 

Writing  to  be  produced,  366(c). 

Prosecution — 

Re-opening  case  for  evidence,  58 (i). 

Prosecutor — 

Obtaining  a  confession,  188 (d),  189(d). 

duty  of  court,  188  (d). 
Threatened  by  accused,  128  (m). 

Prostitutes — 

Character  of,   143(d). 

Protest — 

Certificate  of,  admissible,  when,  402(c),(d). 
Statement  of  notary  in,  163(c). 

Public  Contract — 

Mistake  in  bid,  8(b) . 

Public  Documents — 

Judicially  noticed,  17(a).  , 

Public  Officers — 

Judicial   admission   of,  8(b). 

Punitive  Damages — 

Ability  of  defendant  to  pay,  134(b). 

Purpose — 

Of  admitting  evidence,  2.34(e)  et  seq. 
Ofl'i-ring  <'vidence  for  a  wrong,  236(e). 
Ollering  evidence  on  correct  ground,  236 |e). 


716  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 


Quantum  meruit — 

Wealth  of  defendant  considered,  when,    134(f) 

Quarrel — 

Agreement  to  provoke,   128(d). 
Seeking,  guilty  conduct,   128(d). 
Sudden,  195(a). 

Questions — 

Instructing  jury  on  repeating,  236(c). 
Repeating,  after  ruled  out,  236(a),(d). 
Eepeating,  made  admissible  later,  236  ( d ) . 


R 

Railroad — 

Books  of,  competent  as  an  admission,  lS6(f). 
Books  of,  in  behalf  of  itself,   lS6(f). 
Crossing,  no  sign-board  at,   125(b). 
Declaration  of  baggage-man,  204(a). 
Declaration  of  conductor,  204(c). 
Declaration  of  passenger  after  injury,  107(e). 
Ejection   of  passenger,  malice,   195(h),(i). 
Entries  in  books,  etc.,  391(b),(c). 
Passenger  ticket,  parol  evidence,  435  ( d ) . 
Ees  gestae  to  show  intent  of  passenger,  196(d). 


Rap( 

Acts  of  husband  of  prosecutrix,  205  ( d ) . 
Burden  of  proof  to  show  capacity,  78(f). 
Character  and  specific  acts,  139(b). 
Character  of  prosecutrix,  139(a). 
Conduct  of  prosecutrix  with  other  men,  139(c). 
Declarations  of  prosecutrix  afterward,  198(a). 

cross-examination  on,  198(e). 

error,  charge,  198(f). 

prosecutrix  incompetent,   198(f). 

several  days  after,  19S(c),(d). 
Declarations  to  corroborate  prosecutrix,   198  (a) 
Explaining  condition  of  woman,   124(a). 
General   reputation  of  prosecutrix,   139  (i). 
Guilty  of  other  rapes,   133(h). 


GENERAL    INDEX  TIT 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Kape — Continued. 

Presumption  as  to  character  of  prosecutrix,  139(f). 
Presumption  of  capacity,  28(b). 
Reports  about  prosecutrix,  139(h). 
Reputation  of  prosecutrix,  313(a). 
Sexual  crimes  with  consent,  133 (i)    et  seq. 
Statements  of  husband  of  victim,  20.5  (d). 
Testin"  witness'  knowledge  of  reputation,   139 (i). 

Real  Estate — 

Conditional  delivery  of  contract,  parol,  433(c). 

Custom  to  change  title  of,  439(c). 

Damages  for  breach  of  contract  for,  130(1). 

Expert  on  value  of,  352. 

Measure  of  damages  to,  351(a). 

Open  and  close  in  action  to  recover,  56(b). 

Opinion  as  to  damage  by  condemning  part,  351(d). 

Opinion  as  to  damage  caused  by  dam,  351(e). 

Opinion  as  to  difference  in  value,  351(e). 

Opinion  as  to  injury,  351(b). 

Present  value  and  value  one  year  ago,  352(d). 

Right  of  possession,  burden,  47(b). 

Rise  in  value  of,  noticed,  25(f). 

Title  to,  former  decrees,  412(b). 

Value,  amoimt  paid,  352(d). 

Value,  weight  of  testimony,  352(e). 

Heal  Evidence — 

Bastard   shown  to   jury,   127(d). 
Bill  of  exceptions,  244(i). 

bastard  child,  244(a). 

experiments,  251(a). 

models,  251  (e). 

moving  picture,  250(f). 

photograph,  250(b). 

view  of  premises,  240 (c). 

X-ray  photograph,  250(h). 
Cinders    (sparks),  244(f). 
Definition  of,  243(a). 
Diagrams,  250(j),(k). 
Experiments,  251  ct  seq. 
Knife  as  weapon,  244  (c  ),(<!). 
Mutilated  heart,  244(c). 
Person's  age  by  inspection,  244(b). 
Persf)n'R  color  by  inspection,  244(b). 
Photographs,  250. 


718  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Beal  Evidence — Continued. 

Plaster  cast,  244(g). 
Scalp,  piece  of,  244(e). 
String  or  wax-end,  244(c). 
View  of  premises,  245  et  seq. 
Wagon   pole,  244(h). 

Reasonable  Doubt — 

And  character  evidence,  145(d). 

As  applied  to  each  circumstance,  76(d). 

"Oan  give  a  reason  for  doubt,"  charge,  77(e). 

"Captious  or  whimsical  doubt,'"  charge,  77(e). 

Charge   assuming  that  doubts   are  unreasonable.   77(f). 

Charge  that  "each  juror  should  be  convinced,"  77(d). 

Oorptis  delicti  and  rule  of,  76(c). 

Crimes  showing  intent  and  rule  of,  70(f). 

Every  essential  element  must  be  proved,  76(c),(d). 

Failure  of  accused  to  testify,  76(g). 

Intent  must  be  proved  under  rule  of,  76(e),(f). 

"Most  important  affairs"  in  charge,  77(b). 

Proper  charge,  77(c). 

"Eeasonable  certainty"  in  charge,  77(a). 

Reason  for  rule,  76 (b). 

Rule  in  contempt  cases,  76(h). 

Pule  in  criminal  cases,  76(a). 

Rule  on  review,  76(c). 

"Strong  probabilities"  in  charge,  77(a). 

Reasonable  Time — 

Question  for  judge,  129(g). 

Rebuttal — 

Charge  to  jury  on  shifting  "burden,"  61(d). 

Definition  of,  126  (m). 

Evidence  may  be  rebutted,  50(c). 

Evidence  may  follow  order  of  issues,  59(b). 

Evidence  of  equal  weight  for,  63(a),(b). 

Evidence  required  of  parties  for,  63(b). 

Facts  proper  in,  59. 

Failure  of,  on  presumption,  62(b). 

Failure  of,  on  prima  facie  proof,  62(a). 

In  a  triangular  case,  59(d). 

In  will  contest,  85(b). 

Must  repel,  counteract,  disprove,  etc.,  126(m). 

Necessity  of  rebutting  shifts,  61  (a)  ,(b)  ,(c) . 

Of  an  inference,  126. 


GENERAL    INDEX  719 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Rebuttal — Continued. 

Of  evidence  of  violation  of  law,  126 (m). 

Of  malice,  evidence,  156(e). 

Of  prima  facie  proof,  jiuy,  63(a),  102(b). 

Of  proof  on  dcfcLtive  petition,  109(c). 

Outside  issue  ■without  objection,  lO'J(d). 

Preponderance  of  evidence,  63(a),(b). 

Presumption  of  negligence,  62(d). 

Province  of  court  and  failure  of,  62(a). 

To  show  that  a  mortgage  is  not  superior,  59(a). 

Receipts — 

Contract  included,  parol,  425(c)    et  seq. 

Distinguished  from  release,  425 (i). 

For  payment  on  realty,  3S2(g),(h). 

Of  soldier  of   1812,  ancient  document,  SSO(d). 

Parol  evidence  to  vary,  when,  425. 

Receiver — 

Declarations  of,  206(a). 
Judicial  admission  of,  7(e). 

Recorder — 

Certified  copy  of  record,  evidence,  403. 
Entry  of,  admissible,  when,  171(1). 

Records — 

Adjudication  admitted  in  another  case,  when,  413 
As  evidence,  392  ( a ) . 
Certified  copies — 

as  evidence,  392. 

oflficial   bond,   evidence,   392(d). 

proof  of  execution,  380(e). 
Collateral  attack,  409(h). 
Complete  record  not  made,  evidence,  4*12  (a). 
Copies  of,  from  another  state,  392(f). 
Correction  of,  407. 

clear  proof,  407(c) . 

docket  of  justice,  407(g). 
•  evidence  admissible,  407(b),\c). 

nunc  pro  tunc  after  term,  407(e). 

nunc  pro  tunc,  evidence,  407(c),(d). 

nunc  pro  tunc,  law  repealed.  407(f). 
Courts  notice  of  its  own,  21(e),(g). 
Destroyed,  abstract  as  evidence,  412(e). 


720  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Records — Continued. 

Destruction  of,  secondary  evidence,  403(f),(g). 

Direct  attack  on  error,  409(h). 

Faith  and  credit  clause,  404. 

Federal  government,  authentication,  395. 

Foreign  acknowledgment,  translation,  403(d). 

Impeachment  of  judicial,  40S. 

Instrument  copied  in  wrong  book,  403(e). 

Judgment  of  justice  court,  404(e),(f). 

Judicial,  attestation,  404. 

Must  show  prejudicial  error,  220(d). 

Not  required  by  law,  certified  copy,  403(b),(c). 

Of  birth  or  death,  396(g). 

Of  board  of  equalization,  37(b). 

Of  county  commissioners — 

admissible  as  evidence,  398(a). 

impeachable,  when,  398(b). 

parol  to  contradict,  398  (b). 

production  of,  398(a). 

road  proceedings,  398. 

Of  courts  of  any  state,  404. 

Of  elections,  400. 

Of  forfeiture,  parol  to  vary,  408(c). 

Of  hospital,  business  entry,  171(h). 

Of  internal  revenue  depai-tment,  395(f). 

Of  judgment  destroj^ed,  404(d). 

Of  justices  of  peace,  415. 

Of  municipality — 

not  proved  by  parol,  399(b). 

proved  by  printed  copies,  399(a). 

proved  by  transcripts,   399  ( a ) ,  ( b ) . 

Of  probate  court — ■ 

destroyed,  presumption,  408 (f). 
impeachment,  408  ( e ) . 
import  verity,  408  ( d ) . 

Of  recorder,  as  evidence,  392(b). 

Of  road  proceedings,  398  ( a ) ,  ( b ) . 

Of  state  government,  certified  copies,  396(a). 

Of  taxing  officers  not  conclusive,  398(d)   et  seq. 

Of  township — 

identification  of,  399 (i). 

parol  evidence,  when,  399 (i). 

transcript  of,   399  (j). 

Of  trial-court  on  review,  21(e),(f). 
Of  trotting  association,  172(c). 


GENERAL    INDEX  721 

[ITuxnbers  are  to  sections;  letters  are  to  paragraphs.] 

Records — Continued. 

On  review  showing  ordinance,  20(c)  ,(d),{e) . 

Original  papers  lost,  parol,  412(a). 

Part  oifered  in  evidence,  375(f). 

Plea  nul  tiel  record,  variance,  392(h). 

Production  of,  392(a). 

Eaihvay,  to  show  obstructed  view,  195(e). 

Relevant  portions  admissible,  381  (c). 

Eulings  on  evidence  made   a  part  of,   220(b). 

Showing  admitted  answer,  222(c). 

Showing  admitted  evidence,  222(a), (b). 

Showing  admitted  writing,  222(b). 

To  show  plea  of  guilty,  civil  action,  413(e)   et  seq. 

To  show  tender  of  plea  of  guilty,  413(d). 

Transcript  from  appellate  court,  404(g). 

Vacation  of  road,  record  lost,  398(c). 

Redirect  Examination — 

Cross-examination  opening  door   for,   300(c). 

Of  favorable  witness,  opinion   on   merits,   309(e). 

Of  hostile  witness,  205(c). 

Of  unwilling  witness,  309(d). 

Of  witnesses,  309. 

On  new  matter,  309(a). 

Particulars  to  explain  testimony,  309(b). 

Repetition  of  questions,  309(a). 

To  explain  cross-examination,  309(a). 

Refreshing  Memory — 
By  a  writing,  297. 

From  copy  of  original  entries,  297(b). 

From  insurance  records,   297(c).  • 

Writing,  before  suit  brought,  297(d). 
\Yriting  made  when  memory  is  clear,  29J(d). 
Writing,  requisites  of,  297  (d*). 

Release — 

Admission  of  signature  to,  65(f). 
Burden  of  proof,  47  (i),  48(b). 
Clear  evidence  to  vary,  68(b). 
Distinguished  from  receipt,  425  (i). 
Fraud  in  obtaining,  burden,  48 (b). 
In  writing,   inspection,  375(1). 
Issue  of,  opinion,  335(c). 


722  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Relevancy — 

Admission  on  promise  to  show  it  later,  120 (i). 

Defined,   118(b),  130(a). 

Every  relevant  fact  admissible,  exceptions,  130(a),(b). 

Legal,  outlined,  121(a). 

Logical,  defined,  118 (b). 

Of  present  condition  to  show  past,  42(g). 

Of  present  possession  to  show  past,  42(g). 

Presumptions  meaning  '■relevancy,"  41,  42. 

Tendency  to  support,  119(a). 

To  incidental  issues,  119(c). 

To  one  issue  of  several,  119(b). 

To  principal  issue,  119(c). 

Religious  Belief — 

Inquiry  to  aflfect  credibility,  2f)5(b). 
Of  witnesses,  265. 

Remoteness — 

Action  for  death  of  wife,  second  wife,  130(j). 

Adverse  party  not  prepared  for  it,  130(d). 

Effect  on  jurors,  130(d). 

Excites  prejudice,  130(d). 

In  line  of  promotion  when  injured,  130 (i). 

Of  evidential  facts,  130(c),(d). 

Of  financial  ability,  134(a). 

Of  poverty  of  plaintiff,  134(a). 

Pain  may  or  might  result,  130(h). 

Price  of  property  at  auction,  130(1*). 

Probable  future  profits  as  damages,   130(g). 

Remote  facts  to  corroborate,  130(f). 

Repairs  (Subsequent) — 

Admissible  to  show  former  condition.  129(h). 
Admissible  to  show  if  place  was  safe,  129(h). 
Admission  of  duty  to  maintain,   129(f),(g). 
Kot  admissions  of  negligence,  129(a),(b). 
Of  flat  car  after  accident,   129(c). 
Of  safety-appliance  after  injury,  129(f). 
Of  sidewalk,  after  accident,  129(d),(e). 
Within  a  reasonable  time,  129(g). 

Reply- 
Defense  not  denied  by,  no  objection,  117(c). 
Failure  to  file,  117(f). 

no  objection,  117(b). 

in  negligence  case,  117(d). 


GENERAL    INDEX  723 

[Numbers  are  to  sections;  letters  are  to  paragraphs,] 
Reply — Continued. 

Filing,  during  trial,  117(e). 

Issue  made  by,  1(a). 

Xecessary  to  new  matter,  2(b). 

New  matter  inadmissible  under  denial,  117(a). 

Representations — 

Knowledge  of  falsity  of,   146(e), (g),   147(j). 
Like  false,  rejected,  when,   l-47(h),(l). 

Reputation — 

(See  Character.) 

Among  journeymen  painters,  140 (i). 

As  to  family  history,  167(f). 

As  to  pedigree,  167. 

Boundary  lines,   168(a),(d). 

For  truth  and  veracity,  311(c). 

at  time  of  trial,  313(a). 

believing  witness  on  oath,  312(c). 

forms  of  question,  312 ( a), (b). 

general  reputation,  311(a). 

knowledge  of  witness,  311  (b). 

opinion  of  witness,  311(a). 

rebuttal  of  bad  reputation,  311(d). 

who  may  be  impeached  by,  314. 
Not  hearsay,   166(d). 
Of  account-books  as  incorrect,  384 (d). 
Of  buyer  of  liquors,  to  show  knowledge,  1.50(b), (c). 
Of  cohabitation,   167  (b) ,  f  d)  ,(e) . 
Of  financial  condition,  to  show  knowledge.  150(f), 
Of  fireman,  to  show  knowledge,   150(e). 
Of  gambling  place,  to  show  knowledge,  150(d). 
Of  house  of  ill   fame,.  144(a),{b). 
Of  prosecutrix  at  time  of  trial,  313(a). 
Of  trust,  law  void,  144(c). 
Presumption  of  continuance  of,  42(d). 
To  prove  lost  corners,  16S(c). 
To  prove  marriage,  167(c)   et  seq. 

Res  Gestae — 

Ciinstriuting  disputed  crossing,  105(f). 

Declaration  of  agent,  201(b). 

Definition   of,   194(a). 

Ejection   of  passenger,  malice.   in5(h),(i). 

Exclamations,  197(a)  et  seq. 


724  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Res  Gestae — Continued. 

In  rape  cases,   198. 

Negligence  of  bailee  of  money,  195(g). 

Time  of  declaration,  197. 

To  prove  breach  of  promise,  196(b),(c). 

To  show  effect  of  boycott,   196(h). 

To  show  party  was  agent,  196(g). 

Verbal  acts,  196. 

Residence — 

Admission  of.  liy  card,  178(b). 

Res  Ipsa  LoquiLur — 

As  a  presumption,  32(b). 
Directing  a  verdict,  62(c). 
Makes  a  prima  facie  case,  86(c). 

Res  Judicata — 

(Stee  Former  Adjudication.) 

Reviewing  Court — 

Sustains  reasonable  inferences,  54(b). 

Road — 

Presumption  in  favor  of  record  of,  35(f). 

Roentgen  Ray — 

As  evidence,  250(g),(h). 

Rulings — 

On  evidence,  bill  of  exceptions,  220(b). 


s 

Sale— 

At  high  price,  rebuttal,   126(e). 

By  brokers,  custom,  439(e).  .. 

Conversation  in,   195(b). 

Of  corn,  parol  not  admitted,  453(d). 

Of  fat  hogs,  parol  not  admitted,  453(c). 

Of  "my  hogs,"  parol  to  identify,  453(b). 

Proposal  part  oral,  part  written,  435(f). 

Seller  relied  on  statement  of  buyer,  324(e). 

Warranty,  surrounding  circumstances,  445(d). 


GENERAL    INDEX  725 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Sanity — 

Presumption  of,  31(a). 

School  Board — 

L'oiitract  with,  parol,  399(h). 
Member  as  agent  of,  20S(f). 

Science — 

Judicial  notice  of  facts  of,  24. 

Scintilla  Rule — 

Attempt  to  abrogate,  99(c). 

Established,  99(c). 

In  will  contests,  85 (i). 

Seaworthiness — 

Presumption  of  continuance  of,  42(b). 

Securities — 

Presumption  where  there  are  two,  43(h). 

Seduction — 

As  a  motive  for  murder,  152(d). 

Corroboration  of  victim,  258(e). 

Of  female  of  good  repute,  139(d). 

Social  standing  of  plaintiff's  family,   142(b). 

Self-defense — 

Burden  of  proof  on  accused,  82(a),(b). 
Error  in  charge  on  burden,  82 (c). 
Opinion  on  existence  of  danger,  335(h). 

Self-serving  Statements — 

Admissible  to  show  state  of  mind,  185  (a). 

Admission  of  one  does  not  open  door  for  others,  180(e). 

Assignment  between  co-plainiffs,   186(a). 

Belief  may  be  shown  by,  185(a). 

Conversation  between  co-partners,  184 (b). 

Conversations  of  co-parties  as,  184(a). 

Entries  in  siock-ledger,  186(b). 

General  rule,  184(a) . 

Illustrations  of  oral,  184. 

Illustrations  of  written,   186. 

In  absence  of  adverse  party,  200. 

May  not  be  prejudicial.  184(h). 

To  repel  imputation  of  fraud,  185(b). 

To  sliovv  eflect  of  into.\ieation,  185(c). 


726  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Seller- 
Transaction  to  show  if  he  was  agent,  195(c). 

Seminole  War — 

Judicially  noticed,  22(b). 

Servant — 

Justification  of  discharge,  burden,  47(d). 

Services — 

Contract  with  relative  for,  75(c)    et  seq. 

Session  Laws — 

As  evidence  of  acts,  393(a). 

Sexual  Intercourse — 

(See  Adultery.) 

Issue  of,  conclusion,  336(a). 

Of  plaintiff,  slander,  137(d). 

Prosecutrix  opening  door  for  specific  acts,  139(c). 

With  female  over  sixteen,  evidence,   133(1). 

With  female  under  sixteen,  evidence,  133(k),(l). 

Side-track — 

Expert  witness'  opinion,  359(e). 

Sidewalk — 

Knowledge  of  defects  in,  146  (m). 
Repair  of,  after  accident,   129(d), (e). 
Similar  accidents  on,  148 (d). 

Signature — 

Knowledge  of  fraud  in  procuring,  147(g). 

Silence — 

Admission  by,  181. 
Explanation  of,  182(g). 

Similar  Accident — 

To  show  dangerous  condition,  148 (b)    et  seq. 
To  show  knowledge,  148(a). 

Similar  Frauds — 

Nut  admissible,  when,   197(h). 


GENERAL    INDEX  727 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Similar  Occurrences — 

Cumparing  near-by  bridges,   131(c). 

General  rule,  131(e). 

Man  careful  at  other  times,  131(d). 

Manufacture  of  barrels,  131(b). 

Persons  injured  at  sjime  crossing,  131(d). 

Rejected  when  knowledge  not  shown,   149(c),(d). 

Similar  accidents,  131(e). 

Sinking  of  boats,  131(a). 

Speed  of  other  cars,  131(f). 

Time  to  stop  other  cars,  131(f). 

To  show  knowledge,  149. 

Sinking  Fund — 

Meaning,  judicially  noticed,  25(c). 

Slander — 

Acts  of  sexual  intercourse,  137(d). 
Character  in  case  of,   137(a). 
Evidence  to  rebut  malice,   15S(d). 
Good  faith  to  mitigate  damages,  158(d). 
Malice  in,  shown  by  other  slanders,  158  (b). 
Of  female  of  good  repute,  specific  acts,  137(e). 
Preponderance  rule  in  action  of,  84(e). 
Stocial  standing  of  parties,   142(a). 
Wealth  of  defendant  considered,   134(c). 
Words  used  in,  not  hearsay,  165(a). 

Social  Standing- — 

In  libel  and  slander,  142(a). 

In  miilicious  prosecution,  142(b). 

In  seduction,  142(b).. 

Sodomy — 

Declarations  of  victim,   198(g). 

Soldiers'  Home — 

Act  relating  to,  judicially  noticed,  19(b). 

Sound — 

Description  of,   opinion,   336 (b). 

Special  Proceedings — 

Burden  of  i)ro<)f  on  aiiplicant,  S!)(a) ,(b),(e). 
Open  and  close,  55(d). 


^28  GfeNERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Specific  Performance — 

Order  of  evidence,  120(d). 

Speed — 

Custom  of  slackening,   135(d). 
Rate  of,  opinion  based  on  collision,  361(c). 
Slackening  of,  opinion,   361(c). 
Witnesses  as  to  rate  of,  361. 

Square  Yard — 

Of  pavement,  parol,  439(h). 

State — 

Not  bound  by   declarations  of  witnesses,   200(c),(f). 

State  Engineer — 

Declarations  of,  208(a). 

Statement — 

Against  pecuniary  interest,   169. 
Notice  to  produce  original,  371(b). 
Of  person  referred  to,  202(b). 

Station — 

Used  long  time  without  accident,  148(j). 


Statistical  Tables — 

Exception  to  hearsay,  172. 

Of  life  insurance,  as  evidence,  172(b). 

Statute  of  Frauds — 

Allows  use  of  secondary  evidence,  382  (m). 
Assent. of  one  party,  parol,  4.51(h). 
Form  of  agreement,  382. 

Statutes — 

General  and  public,   judicially  noticed,   19(a). 

History  of,  judicially  noticed,  16(a). 

Judicial  notice   in  construing,  16. 

Operation  of,  judicially  noticed,   16(d). 

Practical  construction  of,  judicially  noticed,   16(b),(c), 

Private,  not  noticed  judicially,  19(a). 


GENERAL    INDEX  729 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Stealing — 

Criminal  intent,  rebuttal  of,  160(c). 

Steamboat  Captain — 

Declarations  of,  204(b). 

Steamboats — 

Collision,  expert  opinion,  358(a). 
Effect  of  wave-swells,   opinion,   358 (c). 
"Tight  and  sound,"  opinion,  358(b). 

Stenographer — 

Notes  of,  to  prove  former  testimony,  175. 
Reading  notes  to  impeach,   175(c). 
Refreshing  memory  from  notes,  391(e). 
Report  of,  admitted  to  impeach,  391(e). 
Transcript  of  notes  of,  175(d). 

Stockholders — 

Admissions  of,  207(a). 

Street — 

Condition   of   excavation   dangerous,   opinion,  363  (h). 
Defects  in,  reported  by  police,  208(d). 

Street  Car — 

Method  of  operation  noticed,  25(d). 
Party  ejected  from,  feelings,  159(b). 
Prior  accident  to  show  condition,  148(c). 

Street  Railroads — 

Judicial  notice  as  to  history  of,  16(f). 

Sub  j  ect-matter — 

Presumption   in   description   of,   43(e). 

Subpoena — 

Duces  tecum,  374(a). 

Subsequent  Conduct — 

(See  Conduct.) 

Suicide — 

Burden  of  proof  to  show  insured  is,  53(e). 
Person  threatened  to  commit,  125(h). 


730  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Summons — 

Clear  evidence  to  show  no  service  of,  72(c). 

Sunrise — 

Time  of,  shown  by  almanac,   172(a). 

Superior — 

Presumption  that  one  obeyed  orders  of,  38(f). 

Surety- 
Agreement  to  certify  as,  13(d). 
Declaration  of  principal,  212(c), (d). 
Declarations  of,  res  gestae,  437(d). 

Suretyship — 

Incomplete  contract,  parol,  437. 

Surveyor — 

Field-notes  of,  171(f),(g). 


Tax  Collector — 

Proof  of  official  position,  400  (k). 

Tax  Deed — 

Xo  presnmptioa  in  its  favor,  398(g). 

Xot  prima  f-c:e  eviJ.T.ce  of  v:ilid  title,  37(c). 

Tax  Sale — 

Record  of,  proved  by  sworn  copies,   398 (f). 

Teacher — 

Sexual  intercourse  with  pupil,  evidence,   13i3(j), 

Technical  Terms — 

Explained  in  charge,  95(e). 

Of    instrument,    parol    to   explain,   439(b). 

Telegram — 

As  given  to  receiver,  primary  evidence,  364(b). 
Evidence  of  inaccuracy  in,  65(e). 


GENERAL    INDEX  731 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Telephone — 

Condition  of  business  within  territory,  123(b). 

Contract  by,  165(b). 

Identity  of  person   talking,   165(c). 

Tenant — 

Presumption  as  to  tenant  holding  over,  43 (k). 
Usage  as  to  away-going  crop,  441  (d). 

Testator — 

Declarations  of,  showing  state  of  mind,   153(g). 
Declarations  of,  to  prove  lost  will,  153(g). 
Declarations  ai,  undue  influence,  153(g). 
Feelings  of,  contrary  to  will,  122(a). 

Testimony — 

By  aflidavit,  254. 

By  deposition,  255. 

Falsity,  effect  of,  91(b). 

Falsus   in  uno,  9Hc). 

Improbability  of,  91(b). 

Judge  disparaging  reports  of  former,  91(g). 

Judge  stating  recollection  of,  97(e). 

Knowledge  of  falsity  of,  146(c). 

Modes  of  taking,  253. 

Of  accomplices,  259. 

Subscribed,  used  as  a  deposition,  when,  255(d), (g). 

Witness  restating,  97(e). 

Threats — 

Against  property,  12<S(e). 
Effect  of,  question  of  fact,  324(f). 
Just  before  attack,  res  gestae,  196(e). 
Malice  shown  by  previous,  156(a). 

Timber — 

Intent  in  cutting,   154(e). 

Time— 

Evidence  to  prove  extension  of,  125(c). 
Extension  of,  burden  of  proof,  48(c). 
Length  of,  as  a  bar,  44(e). 
Length  of,  as  matter  of  evidence,  44(e). 


r-QO  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Title- 
Evidence  of,  to  canal  lands,  65(a). 
Evidence  of,  to  right-of-way,  65(c). 

Tobacco — 

Usage  as  to,  warranty,  441(e). 

Torts — 

Indefinite   allegation,  evidence,  106(f). 

Township — 

Four  miles  from  a  city,  23(f). 
Noticed  that  it  is  fractional,  23(c), 

Trade  Fixtures — 

Intent  as  to,  153(c). 

Trainmen — 

Duties  of,  opinion,  359(a). 

Transaction — 

Part  of  same,  194(a). 
Regularity  of,  presumed,  39(a). 
Showing  if  seller  was  agent,  195(c). 
\Yhole  of  same,  194(a). 

Treason — 

Two  credible  witnesses,  258(b). 


Treaties — 

Evidence  of,  not  necessary,  17(a). 
Judicially  noticed,   17(a). 
Printed  copies  superfluous,  17(a). 
Seminole  treaty  of  1832,  22(b). 

Trees — 

Cutting  trees  under  license,   156(g). 

Trial- 
Definition  of,  90(a). 
Using  money  in  connection  with,   128(h). 


GENERAL    INDEX  733 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Trust- 
Acts  committed  by  participants,  218(a),(c). 
Character  of,  144(c). 
Clear  evidence  to  establish,  69(a),(b). 
Engrafted  on  deed  by  parol,  430. 
Of  half  interest,  evidence,  431(e),(f). 
Parol  evidence  to  show  implied,  431. 
Presumed,  when,  430(d). 
Presumption  of,  29(aj,(b). 
Proved  without  primary  evidence,  364(c). 

Trustee — 

Judicial  admission  of,  9(a). 
Presumed  he  did  his  duty,  38(g). 
Presumption  of  conveyance  by,  38(b). 


u 


Ultimate  Facts — 

Determined  before  trial,  1(a). 
Judicially  noticed  not  plead,  15(a). 

Undue  Influence — 

Declaration   of   testator,  153(g). 
Evidence  to  rebut,  126(d). 

Usage — 

(See  Custom.) 

/  <  to  delivery  of  ore,  441(f). 

Must  be  reasonable,  439 (k). 

Must  not  contradict,  438(b). 

Of  trade,  441. 

To  explain  a  contract,  438(b). 

Usury — 

Clear  evidence  to  establish,  71(b). 
Custom  of  banks  contrary  to  law,  439(f), 
Evidence  to  establish  defense  of,  71(b). 
Preponderance  to  establish,  71(b). 


^34  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 


Value- 
Allegations  as  to,  4(b),  5(a). 
Evidence  introducing,  123(a). 
Evidence  required,  when,  6(a). 
Of  horse,  juror's  knowledge  of,  98(g). 
Of  property,  juror's  knowledge  of,  98  (e). 
Of  real  estate,  opinion,  352. 
Of  services,  and  condition  of  house,   124(b). 
Of  services,  one  witness,  93  (i). 
Of  services,  without  evidence  of,  98  (c). 
Of  work  admitted,  when,  125(f). 

Variance — 

Amendment  after   immaterial,   107. 
Amendment  not  needed  when   immaterial,  107(c). 
Amendment  on  terms  when  material,  108(a). 
As  to  immaterial  allegations,  115(b). 

illustrations,   115(d)    et  seq.- 
As  to  material  allegations,  115(a). 
Evidence  admitted  without  objection,  108(e). 
Evidence  excluded,  and  amendment,  108(d). 
Immaterial,  effect  of,  107(a). 

object  of  code,  107(b). 
In  legal  conclusions,  115(b). 
In  substantial  elements  of  case,  115(b). 
Material,  defined,  108 (a). 
Objection  at  close  of  evidence,  109(a). 
Objection  at  time,  109(a). 
Objection  before  charge,  109(a). 
Objection  on  error,  109(b),  110(f). 
Petition  not  to  be  aided  by  answer,  114(b), 
Prejudicial  misleading,  effect  of,   108(a). 
Substantial,  effect  of,  108  (c). 
Time  for  objection  to,  109. 
Without  objection  at  trial,  109(b),  110(f). 

Vendor  of  Personalty- 
Declarations  of,  after  sale,  211(c). 

Verbal  Act — 

Exclamations,  197(a)   et  seq. 
General  principles,  196(a). 
Time  of  declaration,  197. 


GENERAL    INDEX  735 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Verdict — 

Amendment  after,  110(c),(g). 
Directing,  99(b). 

for  one  holding  burden  of  proof,  102(e), (g). 
in  criminal  cases,  99 (i). 
in  negligence  cases,  104(d),(e). 
in  Avill  contest,  105. 
no  new  trial,  99(g). 
on  conceded  facts,  103(d). 
on  documentary  evidence,  103(c). 
on  opening  statement,  103(e). 
on  wrong  grounds,  99(h). 

when  different  minds  would  differ,  102(c),(d). 
when  no  conflict  in  evidence,  103(c). 
Impeachment  of — 

affidavits  of  jurors,  410(b), (d)   et  seq. 
conduct  at  view  of  premises,  410(d). 
homicide,  degree  of,  by  lot,  410(c). 
in  case  of  mistake,  410(e). 
misconduct  ot  jurors,  410(a), (g). 
newspaper  in  jury-room,  410(f). 
on  hearsay  evidence,  410(h). 
testimony  of  jurors,  410  ( a ) . 
verdict  by  averagmg,  410(b). 
Juror's  testimony  in  case  of  mistake,  410(e). 
Jurors  testimony  to  sustain,  410(d). 
Motion  for,  a  submission,  when,  101. 
at  close  of  all  evidence,  100(b),  101. 
before  the  defense,  100. 
involves  admission,  99(d), (e). 
made  by  each  party,  101. 
made  by  one  party,  100. 
makes  court  trier  of  fact,  when,  101. 
Negligence  and  directing,  62  (d). 
On  several  issues,  error  in  one,  233. 
Presumption  and  directing,  62(b). 
Prima  facie  proof  and  directing,  62(a),(b)  ,(c). 
Res  ipsa  loiiuitur  aim  directing,  62(c). 
Setting  aside,  new  trial,  99(f),(g). 
Special,  facts  conclusively  determined  in,  103(b). 
Wrong  reason  for  a  correct,  103(d). 

Verification — 

Of  pleading,  effect  of,  83(a). 


736  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

View  of  Premises — 

Accused,  presence  of,  247(c). 

Bill  of  exceptions,  24G(c). 

Condition  of  premises,  245(c). 

Change  of  venue,  247  ( d ) . 

Criminal  cases,  purpose,  247. 

Evidence  in  ditch  cases,  247(c). 

Experiments  made,  247(c). 

General  principles,  245. 

In  appropriation  cases,  purpose,  98(f),  246. 

Juror  asking  questions,  247(a). 

Jury's  attention  called  to  facts,  246(b). 

Justice  may  order,  245(c). 

Measurements  taken,  247(c). 

Not  evidence,  245(b). 

Purpose  of,  245  ( a) . 

Second  view,  248(b). 

Vital  Statistics — 

Certified  copy  of  records,  396(g). 

Vote- 
Evidence  of  illegal,  66(c). 


w 


Wagon-pole — 

Inspected  by  jury,  244(h). 

Warranty — 

Immaterial  allegation  in  breach  of,  115(d), 

Water- 
Chemical  analysis  of,  357(d). 

Wealth— 

Of  defendant,  punitive  damages,  134. 

Weights 

Of  character  evidence,  145(a). 

Well— 

Value  shown,  how,  352(c). 


GENERAL    INDEX  737 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Wife- 
Action  for  death  of  wife,  second  wife,  130(j). 
Malice  in  separating  husband  from,  156(d). 
Opinion  of,  as  to  guilt  of  husband,  130 (k). 
Presumption  that  a  man  supported  his,  38(c). 

Wills- 
Admitted  to  identify  one  disappointed,  127(c). 
Applying  descriptions  to  subject,  454(a). 
As  a  contract,  3S2(f). 

Clear  evidence  to  prove  a  lost  will,  73(b). 
Construction  of,  447. 
Copy  of,  to  prove  lost  will,  369(d). 
Copy  with  probate  annexed,  evidence,  411  (a), (b). 
Declaration  of  parties  to  show  trust,  430 (i). 
Declaration  of  subscribing  witness  afterward,  197(f). 
Declarations  of  testator,  evidence,  when,  422(e),(f). 
Description  of  subject-matter,  43(e). 
Devising  poperty  subject  to  charges,  422(c). 
Evidence  of  genuineness,  122(a). 
Foreign  will  as  evidence,  impeachment,  411(c),(d). 
Instructions  to  scrivener  incompetent,  422(d). 
Intent  to  revoke,  declarations,  153(h). 
Lost  or  destroyed,  declarations,  153(g). 
Lost  or  destroyed,  secondary  evidence,  witnesses,  369(c).    - 
Lost  or  destroyed,  proof  clear,  369(c),(d). 
Not  reformed,  422  ( c ) . 
Parol  evidence  excluded,  422. 
Parol  to  identify  person  named,  450(c),(d). 
Parol  to  show  bequest  a  trust,  430(h). 
Patent  ambiguities,  422(d). 
Photographs  of  testator,  250(d),(e). 
Prestimption  as  to  drawing  of,  43(g). 
Presumption  as  to  revocation,  29. 

of  law  or  fact,  29(f). 
Presumption  from  destruction,  29(e). 

of  law  or  fact,  29(f). 
Presumption  from  order  of  probate,  31(d). 
Presumption  of  ademption,  43(f). 
Probate,  one  witness,  258(a). 
Proved  by  authenticated  copy,  when,  411(d). 
Revocation  from  erasure  of  name,  29(g). 
Rules  of  construction,  422. 
Testator's  feelings  contrary  to  will,  122(a). 
Words  "home  farm,"  parol,  454(c)). 
Words  "my  two  farms,"  parol,  454(b). 


738  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Will  Contest- 
Affidavit  of  subscribing  witness,  254(e). 
Allegations  of  pleadings,   106 (h). 
Burden  of  proof,  85(c),(d). 
Charge  on  preponderance  rule,  85(h). 
Directing  a  verdict  in,  105. 
Error  in  charge  on  burden,  85(g). 
Evidence  not  confined  to  allegations,  106(h). 
Faithfulness  of  beneficiary,  125(g). 
In  nature  of  appeal,  85(a). 
Lost,  spoliated  or  destroyed  will,  85(e),(f). 
Open  and  close,  85(b), 

Order  of  probate  is  prima  facie  proof,  85(b). 
Rebutting  evidence  in,  85(b). 
Scintilla  rule,  85  (i),   105(b),(c). 
Testamentary  capacity,  burden,  85(g). 
Weight  of  evidence  for  jury,  105(b),(c). 
Will  not  properly  executed,  105(e). 
Will  not  eigned  at  end,  105(d). 

Witnesses — 

Accomplices  as,  92(e). 

Admitting  guilt  of  perjury,  competency,  264(b). 

Affirmation  or  oath  required,  265(b), 

After-acquired  knowledge  of,  162  ( i ) . 

Assignor  of  party  against  representative,  282. 

As  to  rate  of  speed,  361. 

weight  of  testimony,  361(b). 
Bias  and  prejudice  of,  303. 
Called  in  rebuttal,  impeachment,  314(a). 
Character,  limit  of  number,   145(g),(h). 
Chemical  experts,  357. 
Classifying,  92(a), 
Competency  of,  263. 

exclusion  of  witness,  error,  263(f), 

insane  persons,  263(b)    et  seq. 

law  at  time  of  trial  governs,  263(e). 

rejection,  expected  proof,  263(f). 
Contradicting  as  to  bias,  303(b). 
Conviction  of  crime,  competency,  264(a). 
Corroborating  recognition  of  accused,  200(g). 
Corroboration  of,   is  for  jury,  92(e). 
Credibility  of,  93(a). 
Credibility  of,  province  of  jury,  91(a). 
Credibility  of  two  contradictory,  91(h). 
Credibility  without  impeachment,  91(d). 


GENERAL    INDEX  739 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Witnesses — Continued. 

Cross-examination  of,  29S  et  seq. 

Cross-examination  of,  impeaching,  312(f). 

Detectives  as,  92(c). 

Direct  examination  of,  204  et  seq. 

Either  of  two,  admissible,  260. 

Examination  of,  294  et  seq. 

Examination  of  hostile  witness,  295. 

Executor  against   executor,   competency,   280(a),   282(d). 

Experts — 

cross-examination  of,  332(c)  et  seq. 

examination  of,  332. 

fees  of,  332(b). 

general  rule,  327. 

hypothetical  questions,  330. 

impeachment,  333. 

on  custom,  442. 

on  insulator,  126(c). 

on  value  of  realty,  352. 

refusing  to  testify,  332(b). 
Explanation  of  failure  to  call,  182(h). 
Failure  to  call,  182. 
False  testimony,  effect  of,  91(b). 
Falsus  in  uno,  effect  of,  91  (c). 
Food  expert,.  357  ( e) . 
Fortifying  own  statement,  206. 
Hearing  conversation,  best  evidence,  260(c). 
Heirs  of  decedent,  competency,  276(a). 
Impeachment,  contradictory  statements,  315  et  seq. 
Impeachment,  reputation,  311  et  seq. 
In  contempt  on  suspicion  of  falsity,  308 (e). 
In  perjury  cases,  76 (i). 
Interest  of,  in  criminal  case,  264(a). 
Juror  as,  98(a) . 
Jury  bound  by  facts,  91  (j). 
Limitation  of  number,  262. 

in  appropriation  cases,  262(e). 

on  character,  145   (g),(li). 
on  mental  condition,  262(d). 
Making  affidavit,  impeachment,  314(b). 
IManner,  effect  of,  91(d). 
Medical  experts — 

cross-examination  of,  345,  349(c). 
hypothetical  questions,  349(a),(b). 
in  malpractice  cases,  344. 
on  capacity  to  make  will,  347. 


740  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Witnesses — Continued. 

Medical  experts — Continued, 
on  mental  capacity,  349. 
on  permanency  of  injuries,  343. 
opinion  as  to  social  disease,  342(f). 
opinion  based  on  information,  342(c). 
opinion,  cause  of  injuries,  342(e). 
opinion,  condition  of  patient,  342(d). 
opinion  on  question  for  jury,  342(g). 
opinion  outside  profession,  342(f),(g). 
physician  of  testator  as,  347(d). 
qualifying  of,  342(a). 
stating  reasons,  342(b). 
weight  of  testimony,  350. 
Kon-experts,  326. 

cross-examination  of,  348(g). 
examination  of,  mentality,  348(c),(d). 
on  ability  to  work,  346(d),(e). 
on  general  state  of  health,  346(c). 
on  mental  capacity  of  releasor,  348(h). 
on  mental  capacity  of  testator,  348. 
on  pain  and  suffering,  346(d). 
on  physical  condition,  346. 
on  value  of  realty,  352(b). 
opinion  at  time  of  examination,  348(f). 
qualifying  on  mentality,  348(d). 
stating  the  facts,  348(d),(e). 
■weight  of  testimony,  350. 
Number  as  affecting  weight,  93(a). 
Oath  or  affirmation  required  of,  265(b). 
Of  service  of  notice,  best  evidence,  260(a). 
One  is  sufficient  to  prove,  258(a). 
On  handwriting,  341. 
On  value  of  personalty,  353. 

On  value  of  realty,  cross-examination,  352(f),(g). 
Opinion  of  judge  as  to  a  certain  class,  92(a). 
Opinions  of,  and  facts,  322. 
Party  as  witness,  271  et  seq. 

against  administrator,  competency,  280(a). 
against  assignee  of  representative,  281(a). 
against  executor,  competency,  278. 
against  guardian,  competency,  279. 
against  heirs,  competency,  280(d), (e). 
against  representative,  competency,  280(b). 
against  trustee,  competency,  280(c). 
against  widow  as  creditor,  280(f). 


GENERAL    INDEX  741 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 

Witnesses — Continued. 

Party  not  bound  by  his  own  hostile,  295(e). 
Personal  knowledge  of,  162  ( j ) . 
Persons  not  parties,  competency,  277. 
Praecipe  for,  character,  145(h). 
Preliminary  examination  of  experts,  328. 
Present  knowledge  ofi,  162  ( i ) . 
Principals  not  parties,  competency,  279(d). 
Privilege  against  incrimination,  307. 
Re-examination  of  hostile  witness,  295(c). 
Recalling  for  cross-examination,  310(a). 
Redirect  examination,  309. 
Refreshing  memory  by  writing,  297. 
Refusing  to  answer  question,  257(a)   et  seq. 

contempt,  308(c). 

disgrace,  307  |g). 

incompetency,  308(c). 

incrimination,  307. 

irrelevancy,  308. 

trade-secret,  308(b). 
Refusing  to  sign  deposition,  257  (i). 
Rehabilitation  after  impeachment,  321. 
Relatives  as,  92(d). 
Religious  belief,  265. 
Remote  facts  to  corroborate,  130(f). 
Required  to  stand,  identification,  264(f). 
Restating  his  testimony,  97(e). 
Self-contradiction,  effect  of,  91(d). 
Separation  of,  261(a). 

punishment  for  disobedience,  261(c),(d). 

violation  of  order,  261(b). 
Statement  that  he  heard,  162(g). 
Subscribing — 

attorney  as,  268(i),(j).  " 

opinion  on  mentality,  348(e). 

since  deceased,  declarations,  197(f). 
Sureties  not  parties,  competency,  280(g). 
Taking  part  in  conversation,  260(c). 
Testimony  disparaged  by  a  judge,  91(f). 
Testimony  of,  injury  to  party,  308(d). 
To  prove  former  testimony,  176. 
Two  in  treason,  258(b). 

Waiving   privilege    against    incrimination,    307(e). 
Widow  of  decedent,  competency,  276(1)). 
Women,  abandoned,  92(b). 
Written  interview  with,  inspection,  375(g). 


742  GENERAL    INDEX 

[Numbers  are  to  sections;  letters  are  to  paragraphs.] 
Woman — 

Character  of,  in  libel  and  slander,  137. 
Of  good  repute,  false  slander,  137(e). 
Presumption  in  favor  of  married,  27(c). 

Workmen's  Insurance — 

As  an   adaiissicjn  of  lack  of  care,  130(n). 

Writings — 

Admission   of  genuineness,   378(c). 

All  parts  which  explain  other  parts  admitted,  381(h). 
Ancient  documents,  execution,  3S0. 
Beyond  jurisdiction  of  court,  secondary,  367. 
Clear  evidence  to  reform,  70(a). 
Clear  evidence  to  vary,  68(a). 
Construction  of,  court  and  jury,  383. 
Copy  and  inspection,  375. 
Copy  of  writing  of  adverse  party,  377. 
Cross-examination  as  to,  365(c). 
Destroyed,  secondary  evidence,  369. 
Dying  declaration  in,  170 (f;. 
■  Examination  by  master,  376. 
Existence  and  transfer,  primary  evidence,  365(b). 
Genuineness,  admission  of,  378(c). 
Impeachment  of  subscribing  witness,  379(e). 
Inspection  and  copy,  375. 
Introduction  of,  381. 
Not  stamped,  evidence,  179(e), 
Order  to  produce,  374(b)   et  seq. 

at  trial  or  hearing,  374(f). 

when  criminating,  374(g), 
Parol  evidence  to  vary,  excluded,  416. 
Party  demanding  copy  may  object  to  admission,  375  (j). 
Presumptions  in  construction  of,  43(a),(b). 
Produced  by  adverse  party,  execution,  3S0(f). 
Proof  of  execution,  378. 

ancient  documents,  380. 

exceptions,  380. 

proof  of  handwriting,  379. 

when  not  attested,  379(h). 

witnesses,  379. 
Proper  subject-matter,  parol,  452. 
Secondary  evidence,  369. 
Several  construed  together,  382(c). 
Statute  of  frauds,  382. 
Subscribing  witness  denying  signature,  379(e). 

X-ray- 
As  evidence,  250(g), (10. 


JOHN  S.  BRUMBACK 
^  JOLEDO,  OHIO 


AA    000  684  127    4       ' 


JOHN  S   BRUMBAGK 
^^^   P^OLEDO,  OHIO 


